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.
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.
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.
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.
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