SIJS PROCESSING TIMES UPDATE

SIJS Processing Times Updates

I've filed a number of SIJS cases since May 2017 with no action.  Under TVPRA 2008, those cases are supposed to be decided within 6 months and that is what we used to see.  However, a number of factors have created the perfect storm to slow down decisions by USCIS.

SIJS cases are now all routed to the National Benefits Center, instead of decided at local Field Offices.  There was a huge influx of children from Guatemala, Honduras, and El Salvador fleeing gang violence and unsafe conditions beginning in 2014: https://www.nytimes.com/interactive/2014/07/15/us/questions-about-the-border-kids.html.  Many of those children applied for this pathway to a lawful permanent resident card.  This pathway differs from asylum in that it is limited to children who have been abandoned, abused or neglected by one or more of their birth parents.  They also have to be under the age of 18 (unless their state court extends eligibility to age 21), be placed under the custody of an individual or placed in foster care, and it has to be found that it would not be in their best interests to return to their home country. 

Children at the Border - The New York Times www.nytimes.com Since Jan. 1, more than 43,000 unaccompanied minors have been placed with sponsors, usually parents or relatives. They remain there while their cases are being processed.

Centralization of these cases at the National Benefits Center is designed to lead to more consistent decisions, unlike in the past when similar facts would lead to different results based on which local office decided the case.  However, centralization combined with a huge influx of cases have led to long delays in decisions.

Many of my clients are desperate to get authority to work, apply for college, obtain a driver's license or otherwise move on with their lives.  In all of my cases, the children have actually been adopted by U.S. citizens.  However, due to the delays, they are stuck in limbo.

At the fall AILA D.C. Regional Conference last week, we discussed this problem.  Other practitioners report that there is no meaningful way to check the status of their case because processing times for the I-360 form decided at the National Benefits Center are not listed on the www.uscis.gov web-site.  If they call the USCIS Customer Service Number, they are told to make an Infopass appointment at their local office.  This is not helpful because the case is not located at the local office.  One Customer Service staffer told my client to write a letter to the Vermont Service Center to inquire about the case status.  This was completely  erroneous because the case is being processed at a different location, the National Benefits Center.  We have also found that inquires from U.S. Senators or Representatives and the USCIS Ombudsmen's Office lead to canned responses that the cases are being worked on and are in the queue.

We applaud the efforts to bring consistency to the process through centralization at the National Benefits Center.  However, we strongly suggest that USCIS update the web-site and train customer service representatives to give more accurate information about case status.  These vulnerable children deserve that.

Disclaimer

This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this web-site are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2018.

TWO ISSUES IN CLOSE RELATIVE ADOPTIONS in 2018

TWO ISSUES IN CLOSE RELATIVE ADOPTIONS in 2018

I.  Bona fides—Sham Adoption

The big problem now with close relative immigration cases is that USCIS is attacking them based on the bona fides of the adoption.  The typical objection is that it is not a real adoption/family formation situation but only a way to get older relatives to the U.S. to obtain a better education.  You can meet all the criteria in the adoption itself for the immigration filing (Hague compliance, under the age limit, obtain two years of legal and physical custody, completed adoption), and get a denial based on the bona fides.

The analogy that is made is to sham marriages or cases of marriage fraud. The Immigration cases cited deal with marriage fraud.  However, unlike in marriage fraud cases, the child whose adoption is considered suspect does not automatically receive an in person interview with an officer where the relationship can be explained and tested.  The decision is made based on the adoption order, the pleadings, and home study reports that are submitted with the immigration filing.

The cases at risk for this response from USCIS involve:

older children relatives adoption completed quickly after the child entered the U.S. lots of talk in the pleadings/home study/ background documents about the child needing a better education no compelling reason for the child to leave her home abroad, such as a medical or health reason married birth parents who are adequately providing for the child before the child arrives birth parents that have consented to the adoption (as opposed to being notified and failing to respond)

How to combat this?  We know that USCIS will ask for the home study and the petition and the GAL report, and even a transcript of the underlying adoption.  So, the way that the adoption case is presented will have a big impact when the immigration case is filed several years later.

Preparation

When the client says that they want to adopt the relative who just arrived here from a foreign country, it is helpful to ask:

1.  What is the problem in the birth home? 2.   Who takes care of the child in that home?  Who provides meals?  Pays for school?  Supervises daily activities? 3.  Does the child have any health challenges?  Would they be better met in the U.S.? 4.  Where do the birth parents work?  Do they come home every night? 5.  Has there been any yelling in the home?  Any physical abuse? 6.  What is the health of the birth parents?  Do they have medical needs? 7.  Does prior guardianship or custody order exist in the home country?  Why was it issued?  A power of attorney is not a formal court ordered guardianship or custody order, so be aware of the difference.

The social worker involved in the home-study can also carefully explore these issues.

We try to build favorable findings of fact into the adoption pleadings, order, and the home study report to the extent that they are present, of course. 

Pleadings and Adoption Order

USCIS considers the following to be factors establishing that the adoption is bona fide:

1.  Parents are incapable of providing proper care and explain why that is. This does not have to rise to the level of abandonment, abuse or neglect under state law, but of course, if you have that, include that information and the citation. 2.  Child has a medical or emotional need that cannot be met by parents 3.  Lapse of time between when the child came to the U.S. and the adoption—at least 90 days and 6 months is better unless the child will age out for the immigration benefit (16, unless younger sibling and then, it is up to 18). Two years is ideal in a Hague case.1   4.  No preconceived intent to adopt--the child came here and AFTER they came, it became apparent that the child could not go home 5.  No prior custody or guardianship order in the home country before the child came –if this does exist, was it issued properly with appropriate notice to all parties? Or, perhaps, it is just an informal power of attorney? 6.  Primary parental control—the adoptive parents are paying expenses and supervising day to day activities. The birth parents are uninvolved or minimally involved. They lived a great distance away from the child and the adoptive parents.

It is suggested that you put as much of this as you have into the pleadings and order. Key phrases to include in your findings of fact are:

The biological parents are “incapable of providing proper care”.                                                           
 1 However, it would be wise to get a custody order in the meantime to allow the child to register for school and to start the two years of legal custody for the immigration filing.


 The biological parents were notified of the adoption and have not objected. If you can satisfy state law without obtaining their consents, but simply with notice and a failure to object, that is preferable.

II. Habitual Residence

As you are aware, when a U.S. citizen is adopting a child who is a citizen of a Hague Adoption Convention country domestically, the Convention is a critical factor.  There are two options:

First, notify the Central Authority of the child’s country of origin of the proposed adoption and request a determination of Habitual Residency.  Then, record the favorable response in the Final Adoption Order or a supplemental Order.

OR

Notify the Central Authority, wait 120 days, and then record in the Final Adoption Order, or a supplemental Order that the notice was sent and the Central Authority failed to respond or to request additional time.

In early 2018, USCIS updated the Habitual Residence Memorandum which sets forth the criteria for notifying the Central Authority of a pending adoption of a child who is a citizen of a Hague Convention Country.

The final Memorandum, PM 602-0095, was dated November 20, 2017 but released to the public on January 18, 2018.  A copy of the final Memorandum can be found on the USCIS web-site at www.uscis.gov.

All practitioners who are seeking to notify the Central Authority of an adoption as of January 18, 2018, must follow the guidance in the final memorandum which is more involved and detailed than the interim guidance.

In particular, practitioners are required to:

Send complete copies of the pleadings with translations

Notify the Central Authority of the date, time and place of the hearing on the matter

Send the notice by certified mailing and not by email or fax unless you can establish that your state law notice requirements permit emailed or faxed notice

The final Order must state that notice was provided to the Central Authority, that they had 120 days to respond or to request an extension of time to respond, and that the Central Authority either did or did not respond.

The final Order must explicitly state that the Court required the attorney to provide any and all responses obtained from the Central Authority in response to the notice.

A copy of the notice must be provided to the Court along with proof of service.

The notice itself must contain the following language:

When notifying the Central Authority of the child’s COO of the adoption proceedings, petitioners must follow the court’s rules of procedure or the instructions in a specific order from the court. The notice must include a copy of the adoption petition or the motion for amended adoption order and must also clearly specify: o The name of the child, together with the place and date of birth of the child and the name(s) of the birth parent(s), if known; o The country of the child’s nationality; o The name of the agency or individual that is the Central Authority in the COO; o The name of the adopting parents; o The date of the child’s departure from the COO, if known; o The date of the child’s arrival in the United States, if known; and o The court name and the date, time, and place of the court’s hearing on the adoption petition or motion for amended adoption order.

Additionally, the notice should indicate that the Central Authority should notify the court if the Central Authority: o Does not intend to object, or o Requires additional time beyond 120 days.2

It is suggested that the Notice also contain a Request for a Habitual Residence Determination. Specifically, that the Central Authority is aware of the child’s presence in the U.S., is aware of the proposed adoption and has determined that the child is not habitually resident in its country of citizenship and does not object to the state court’s exercise of jurisdiction over the adoption.

The Final Memo also says that for the immigration filing to be approved when there is no response from the Central Authority, the family must also prove:

Compelling ties—that the child had an established relationship to the U.S.  an adoption which occurs more than two years after the child’s arrival will be presumed to fulfill this criterion.

Intent—that there was no preconceived intent for the child to be adopted.  Note the similarity to the separate bona fide argument explained above.

Unknown Factors

                                                       
 2 PM-602-0095: Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries, Page 11

Since the new Memo came into effect on January 18, 2018 and the Interim Memo was in effect beginning February 4, 2014, what about adoptions which were completed in that four year period which did not comply with the new detailed requirements? The final Memo purports that adoptions in that time frame should have somehow complied with these unknown detailed notice requirements, which AAAA challenged in our Comments. In the past, it has been suggested that the practitioner simply reopen these adoptions and re-do the notice.  However, that is not feasible in many states due to statutes of repose for adoptions.

Second, what if there is no hearing in your close relative adoption case?  How could you notify the Central Authority of a date and time for a hearing?

The overall point of this practice pointer is that it is essential when doing a relative adoption to involve an Immigration practitioner from the onset of the adoption, not afterwards.

Written by Karen S. Law, Attorney of the Law Offices of Karen S. Law, PLC.
Disclaimer

This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this blog are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2018.

How Good is Your Adoption Agency?

I often am asked if a particular agency is a reputable agency.  The number one piece of advice that I offer is to always use a licensed adoption agency if you are considering placing a child for adoption OR if you are seeking to adopt.

Why?

Over the years, I've seen countless expectant parents suffer heartbreak when they have innocently connected with an adoption facilitator online instead of a licensed adoption agency with a physical address in their area.  The facilitator makes big promises and develops a phone relationship.  But, there are no on the ground services to the expectant parent,such as referrals for housing or job assistance, or pregnancy support centers, or doctors or clinics in her area.  And, no real pregnancy counseling.  As a result, the expectant parent is often unprepared to make an informed adoption decision when she gives birth.

This same issue of lack of training and on the ground services leads many expectant parents to "change their minds" about the placement in the hospital.  The prospective adoptive parent she has been matched with then experiences the heartbreak of a failed adoption.

So overall, I strongly encourage you to make sure that any adoption "agency" is truly that.  A state licensed agency, not an adoption facilitator.  For more information, the FAQs below will be helpful:

Question: What is a Facilitator?

Answer: A facilitator is a person or organization whose only task is to make an introduction between  expectant parents and adoptive parents, in exchange for a large, nonrefundable fee paid in advance.

Question: Are facilitators regulated?

Answer: In some states they are, but in most states, facilitators are prohibited.

***Note: Expectant parents considering adoption as well as prospective adoptive parents should exercise GREAT CAUTION, as it can be difficult to determine whether an entity is licensed as an adoption agency or acting solely as a facilitator.

Question: Are adoptions arranged by facilitators successful?

Answer: Adoptions arranged by facilitators often fail for many different reasons.  Facilitators do not have the training, skill, or experience to ensure a safe and legal outcome.

Question: What if they (facilitators) say they are experts?

Answer: While they do often present themselves as "adoption experts", they are typically unsupervised and unregulated, and may have little to no experience providing adoption services.  They are not required to adhere to set standards in terms of education or best practices in most states, and thus have little accountability when it comes to providing pre-adoption training and counseling or post-adoption services.

***Note: The essential services that goes along with the adoption process are best provided by experienced, licensed adoption professionals who will promise to partner for the long-term success of a family and help meet the often unpredictable, long-term needs of children. 

Question: If we are to exercise great caution, then why are facilitators so popular and easy to find?

Answer: There are many different reasons as to why prospective adoptive families and expectant parents are using facilitators. A facilitator can expand the pool of potential expectant parents who can be matched with an adoptive family, which is attractive to adoptive families and pulls them in.  Also, in some cases it is difficult for older and/or "nontraditional" families to meet the criteria established by local licensed agencies for being matched with an expectant family; this may lead them to choose a facilitator who will help them locate out-of-state expectant parents. 

             

Some expectant parents considering adoption choose to work with a facilitator out of desire for privacy.  Sometimes their prenatal and/or adoption-related expenses cannot be fully compensated according to the law of their state. Simply, people go to facilitators because they do not understand the difference between a facilitator and an agency, and do not know that they are legally entitled to more comprehensive services. 

Question: Why is there so much advertising for facilitators and very little for agencies?

Answer: This is one of the biggest risks, because they are so easily available. Facilitators typically have enormous advertising budgets and pay top dollar for search engine optimization.  As a result, an expectant parent or adoptive parent often finds a facilitator by performing a basic search online, before consulting with a licensed agency or experienced adoption attorney.

              

Many nonprofit adoption agencies are struggling to find the resources for search engine optimization and online advertising, as they cannot compromise the quality of services provided to adoptive parents and birth parents, and are reluctant to raise fees to cover rising costs.

***RECOMMENDATIONS***

~Better enforcement of existing laws

                               

 If a state such as California permits facilitators to operate, we would suggest strict enforcement of licensing and training requirements as well as advertising disclosure restrictions.  If the state prohibits facilitators from operating, especially if this is accomplished through close monitoring of fees paid, more rigorous enforcement by the state Attorneys General and stricter oversight by ICPC offices would significantly limit the activities of facilitators in those states.

~Advertising disclosure laws

                             

We recommend both state and federal laws mandating that print and Internet advertising by facilitators disclose both the state(s) where the entity is located and whether they are licensed to operate in the state where the advertising appears.  This would give prospective adoptive parents and expectant parents more information to decide whether to work with a particular entity.  It would also ensure that individual state standards are met.

~Research and die diligence on the part of adoptive parents
                             Prospective adoptive parents should check with state licensing to determine whether an agency or entity is a licensed child-placing agency.  If it is an out-of-state entity, the adoptive parents should check with state licensing where the entity is located, and be certain that it has the ability to provide or arrange for all the services necessary for an ethical and successful adoption.  Some adoptive parents will still choose to work with facilitators to expand their search for an expectant mother, but they must be aware of the risks and benefits involved.

~Full Compliance with the ICPC
                                 

The Interstate Compact on the Placement of Children (ICPC) aims to safeguard children placed for adoption across state lines, with requirements for sending agencies and the receiving state's ICPC office administrator.  Children can only be placed across state lines after the receiving state has determined that it does not violate their best interests.  Prospective parents adopting a child from another state must ensure that their agency is capable of meeting and fully complying with all ICPC requirements.

~Expectant parents must know their rights
                                  

Expectant parents should be aware that they will typically receive a higher level of service from an agency that has a physical presence in their state.  Local agencies can provide in-person, ongoing options counseling from a social worker with knowledge of resources in the community, and can also ensure that the expectant parents' emotional, legal, and medical needs are met before they are called upon to select adoptive parents or make an adoption plan.  Expectant parents may also be more likely to receive the information agreed upon about the child after the placement if an agency is used, and will now who to turn to if they need post-placement counseling.  If expectant parents choose to work with a facilitator instead, they should request a higher level of service and expect in-person counseling by a licensed child-placing agency working with the facilitator.  They should have the opportunity to meet with an attorney in their state as well as the laws in the state where the adoptive parents reside.  They should also have the opportunity to meet potential adoptive families before they select a family to parent their child.

~Improved oversight of adoption fees
                                    

State laws should require full disclosure of all fees paid by an adoptive family for an adoption placement.  There should be full oversight of these fees mandated by the state Attorney General's Office.  State laws for limits on fees should also be enforced, and states with no limits should review their laws.

This post is an excerpt from Adoption Advocate No. 70: The Role of Facilitators in Adoption, Published April 2014 by Karen S. Law, Esq. and Teresa M. McDonough, ACSW, Nicole Callahan, Editor, Chuck Johnson, Editor: https://www.adoptioncouncil.org/publications/adoption-advocate-no-70.html

Drafted by Brittany Alness, staff member of the Law Offices of Karen S. Law, PLC.
Disclaimer

This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this blog are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2018.

Our Adoption Story

Over the years we have had a number of clients; the happiness that shows on their faces once they have received the news that they are being matched with a child, is an experience like no other. We asked a client of ours to share her story. Due to privacy, there will be no names mentioned, but here in her own words is what she has to share with all of you.

"It was a surprisingly warm day in early April 2017. That morning, my husband and I were debating whether to catch a Washington Nationals game. Instead, we took a phone call from our adoption agency that would change everything.

We learned that a baby girl had been born the day before less than an hour from our home and her birth mother was interested in meeting us. We had just a few hours to decide whether we wanted to move forward with this case. The agency told us as much as they could. So much was unknown including the baby’s race and family medical history. However, we did know that she would most likely be in the NICU for several weeks to care for a treatable medical condition. Additionally, there would be some complications in terms of terminating paternal rights.

That’s when all our training paid off. The year leading up to our adoption was an important time of learning and preparing for our new role as adoptive parents.

We had originally started the adoption process about a year before and after we had ended fertility treatments. When we realized that being biological parents would not be possible for us, we talked about why we wanted to have kids and what our life goals were. We decided that in the end our goal was to be parents. Adoption was not our first choice, but that didn’t make it second best. In fact, we learned that entering this amazing community of adoption was more impactful that we could have imagined.

We did our initial interviews with our adoption agency during the summer of 2016 and quickly worked to complete our home study process. We zipped through the paperwork in just two weeks. An in depth excel chart and nightly meetings at the dinner table helped us to burn through it. We knew that so much of the adoption process was out of our hands, so we wanted to be quick with what WAS within our control. Meeting with the social worker and attending in person and online training helped prepare us to be adoptive parents and make the decisions that we would need to make regarding health challenges, family medical history and drug exposure status. Our home study was completed in the Fall of 2016 and we began the waiting game.

Our advice for other families is to stay hopeful. The question with adoption is not a matter of if you will have a child but a matter of when. We were overjoyed and overwhelmed when we became parents in April 2017. Our little girl is now 1 years old and we look back on our journey with such joy. There were certainly roller coaster moments but we always felt surrounded by experts from our adoption agency and our lawyer Karen S. Law who held our hand and worked the steps for us.

Our adoption story is our favorite story to tell so we are sharing it in the hopes that it helps another family on the journey to parenthood".

Drafted by an actual client of the Law Offices of Karen S. Law with the assistance of Brittany Alness, staff member of the Law Offices of Karen S. Law, PLC.

Disclaimer

This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this web-site are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2018.

Surrendering My Adopted Child's Passport

Recently, I've handled several cases where panicked parents have received letters stating that they should surrender their adopted child's US passport.

Usually, the parents went through the rigorous process of adopting while they were living overseas.  They had a home-study done by a US accredited agency.  They filed the I600A or I800A.  They completed the intercountry adoption process and the child was granted either an IR-3 or IH-3 visa.  They then came to the U.S. for a while with the child and obtained a U.S. passport for the child.  Often, the Certificate of Citizenship issued by USCIS was sent to their U.S. address. Then, both parents and child returned to their overseas address.

In the past, this worked well.  But, now, the Department of State and USCIS have both determined to treat these cases differently.

The family that followed this route will get a letter from the Department of State telling the parents that the child's passport was issued erroneously and is revoked.  There are instructions to surrender the passport either to the U.S. Embassy in their country of residence or by mailing to an address in the U.S.

A second letter is issued by USCIS which says that it cannot issue the Certificate of Citizenship because the child has not yet qualified for citizenship under INA 320.  The rationale is that the child is NOT residing in the U.S in the legal and physical custody of the adoptive parent, but is residing overseas with that parent.

This is all technically accurate.  The law has always required that the child be living in the U.S. with their adoptive parent to qualify for citizenship under this set of circumstances.  But, this was not enforced before and most adoption agencies advised their overseas adoptive parents to adopt, obtain the visa and go visit Grandma in the U.S. for a few weeks to get the child's U.S. passport.

What to do?  The family should hire an experienced immigration attorney to handle the case because it can be done the wrong way.  They will have to take a number of steps including:

1.  Making sure that the child's original passport from the foreign country is still valid.
2.  Obtaining a visa for the child to reside in the foreign country to be placed in that foreign passport
3.  Surrendering the child's U.S. passport once the above has been accomplished  and obtaining proof that the passport has been surrendered.  For this reason, we recommend surrendering the passport at the Embassy itself, not by mailing it to the address in the U.S.
4.  Obtaining a visitor's visa for the child in the foreign passport so that the child may travel temporarily to the U.S.
5.  Filing the N-600K to apply for citizenship for the child under INA 322.  It is best to work with an attorney on this step.
6.  Once the N-600K is approved, flying with the child to the U.S. office that has scheduled the Citizenship interview.
7.  Once the child satisfies the examiner at the interview, the child will receive a new Certificate of Citizenship.  She can then apply for a new U.S. passport.

More information about this process can be found on the USCIS web-site which was just updated on September 21, 2017.
https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-united-states/us-citizenship-adopted-child

Drafted by Attorney Karen Law, staff member of the Law Offices of Karen S. Law, PLC.

Disclaimer

This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this web-site are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2018.