(f) State preadoption requirements.

(1) General. Many States have preadoption requirements which, under the Act, must be complied with in every case in which a child is coming to such a State as an orphan to be adopted in the United States.

(2) Child coming to be adopted in the United States. An orphan is coming to be adopted in the United States if he or she will not be or has not been adopted abroad, or if the unmarried petitioner or both the married petitioner and spouse did not or will not personally see the orphan prior to or during the adoption proceeding abroad, and/or if the adoption abroad will not be, or was not, full and final. If the prospective adoptive parents reside in a State with preadoption requirements and they plan to have t he child come to the United States for adoption, they must submit evidence of compliance with the State's preadoption requirements to the Service. Any preadoption requirements which by operation of State law cannot be met before filing the advanced processing application must be noted. Such requirements must be met prior to filing the petition, except for those which cannot be met by operation of State law until the orphan is physically in the United States. Those requirements which cannot be met until t he orphan is physically present in the United States must be noted.

(3) Special circumstances. If both members of the prospective adoptive couple or the unmarried prospective adoptive parent intend to travel abroad to see the child prior to or during the adoption, the Act permits the application and/or petition, if otherwise approvable, to be approved without preadoption requirements having been met. However, if plans change and both members of the prospective adoptive couple or the unmarried prospective adoptive parent fail to see the child prior to or during the adoption, then preadoption requirements must be met before the immigrant visa can be issued, except for those preadoption requirements that cannot be met until the child is physically in the United States because of operation of State law.

(4) Evidence of compliance. In every case where compliance with preadoption requirements is required, the evidence of compliance must be in accordance with applicable State law, regulation, and procedure.

(g) Where to file . Form I-600, Petition to Classify Orphan as an Immediate Relative, and Form I-600A, Application for Advanced Processing of Orphan Petition, must be filed in accordance with the instructions on the form. (Revised effective 7/6/09; 74 FR 26933 )

(h) Adjudication and decision.

(1) "Grandfather" provision for advanced processing application and/or orphan petition. All applications and petitions filed under prior regulations which are filed before and are still pending on September 30, 1994, shall be processed and adjudicated under the prior regulations.

(2) Director's responsibility to make an independent decision in an advanced processing application. No advanced processing application shall be approved unless the director is satisfied that proper care will be provided for the orphan. If the director has reason to believe that a favorable home study, or update, or both are based on an inadequate or erroneous evaluation of all the facts, he or she shall attempt to resolve the issue with the home study preparer, the agency making the recommendation pursuant to paragraph (e)(8) of this section, if any, and the prospective adoptive parents. If such consultations are unsatisfactory, the director may request a review and opinion from the appropriate State Government authorities.

(3) Advanced processing application approved . (i) If the advanced processing application is approved, the prospective adoptive parents shall be advised in writing. The application and supporting documents shall be forwarded to the overseas site where the orphan resides. Additionally, if the petitioner advises the director that he or she intends to travel abroad to file the petition, telegraphic notification shall be sent overseas as detailed in paragraph (j)(1) of this section. The approved application shall be valid for 18 months from its approval date, unless the approval period is extended as provided in paragraph (h)(3)(ii) of this section. During this time, the prospective adoptive parents may file an orphan petition for one orphan without fee. If approved in the home study for more than one orphan, the prospective adoptive parents may file a petition for each of the additional children, to the maximum number approved. If the orphans are siblings, no additional fee is required. If the orphans are not siblings, an additional fee is required for each orphan beyond the first orphan. Approval of an advanced processing application does not guarantee that the orphan petition will be approved. (Amended 8/7/03; 68 FR 46925 )

(ii) If the USCIS Director, or an officer designated by the USCIS Director, determines that the ability of a prospective adoptive parent to timely file a petition has been adversely affected by the outbreak of Severe Acute Respiratory Syndrome (SARS) in a foreign country, such Director or designated officer may extend the validity period of the approval of the advance processing request, either in an individual case or for a class of cases. An extension of the validity of the advance processing request may be subject to such conditions as the USCIS Director, or officer designated by the USCIS Director may establish. (Amended effective 11/28/11; 76 FR 53764 ; added 8/7/03; 68 FR 46925 )

(4) Advanced processing application denied for failure to disclose history of abuse and/or violence, or for failure to disclose a criminal history, or for failure to cooperate in checking child abuse registries. Failure to disclose an arrest, conviction, or history of substance abuse, sexual or child abuse, and/or domestic violence, or a criminal history to the home study preparer and to the Service in accordance with paragraphs (e)(2)(iii)(A) and (B) and (e)(2)(v) of this section may result in the denial of the advanced processing application, or if applicable, the application and orphan petition filed concurrently. Failure by the prospective adoptive parents or an adult member of the prospective adoptive parents' household to cooperate in having available child abuse registries checked in accordance with paragraphs (e)(2)(iii)(A) (1) and (e)(2)(iii)(A) (1)(i) through (e)(2)(iii)(A) (1)(iii) of this section will result in the denial of the advanced processing application or, if applicable, the application and orphan petition filed concurrently. Any new application and/or petition filed within a year of such denial will also be denied.

(5) Advanced processing denied for failure to submit home study. If the home study is not submitted within one year of the filing date of the advanced processing application, the application shall be denied. This action shall be without prejudice to a new filing at any time with fee.

(6) Advanced processing application otherwise denied. If the director finds that the prospective adoptive parents have otherwise failed to establish eligibility, the applicable provisions of 8 CFR part 103 regarding a letter of intent to deny, if appropriate, and denial and notification of appeal rights shall govern.

(7) Advanced processing application deemed abandoned for failure to file orphan petition within eighteen months of application's approval date. If an orphan petition is not properly filed within eighteen months of the approval date of the advanced processing application, the application shall be deemed abandoned. Supporting documentation shall be returned to the prospective adoptive parents, except for documentation submitted by a third party which shall be returned to the third party, and documentation rela ting to the fingerprint checks. The director shall dispose of documentation relating to fingerprint checks in accordance with current policy. Such abandonment shall be without prejudice to a new filing at any time with fee.

(8) Orphan petition approved by a stateside Service office. If the orphan petition is approved by a stateside Service office, the prospective adoptive parents shall be advised in writing, telegraphic notification shall be sent to the immigrant visa-issuing post pursuant to paragraph (j)(3) of this section, and the petition and supporting documents shall be forwarded to the Department of State.

(9) Orphan petition approved by an overseas Service office. If the orphan petition is approved by an overseas Service office located in the country of the orphan's residence, the prospective adoptive parents shall be advised in writing, and the petition and supporting documents shall be forwarded to the immigrant visa-issuing post having jurisdiction for immigrant visa processing.

(10) Orphan petition approved at an immigrant visa-issuing post. If the orphan petition is approved at an immigrant visa-issuing post, the post shall initiate immigrant visa processing.

(11) Orphan petition found to be "not readily approvable" by a consular officer. If the consular officer adjudicating the orphan petition finds that it is "not readily approvable," he or she shall notify the prospective adoptive parents in his or her consular district and forward the petition, the supporting documents, the findings of the I-604 investigation conducted pursuant to paragraph (k)(1) of this section, and any other relating documentation to the overseas Service office having jurisdiction pursuant t o § 100.4(b) of this chapter.

(12) Orphan petition denied: petitioner fails to establish that the child is an orphan. If the director finds that the petitioner has failed to establish that the child is an orphan who is eligible for the benefits sought, the applicable provisions of 8 CFR part 103 regarding a letter of intent to deny and notification of appeal rights shall govern.

(13) Orphan petition denied: petitioner files orphan petition more than eighteen months after the approval of the advanced processing application. If the petitioner files the orphan petition more than eighteen months after the approval date of the advanced processing application, the petition shall be denied. This action shall be without prejudice to a new filing at any time with fee.

(14) Revocation. The approval of an advanced processing application or an orphan petition shall be automatically revoked in accordance with § 205.1 of this chapter, if an applicable reason exists. The approval of an advanced processing application or an orphan petition shall be revoked if the director becomes aware of information that would have resulted in denial had it been known at the time of adjudication. Such a revocation or any other revocation on notice shall be made in accordance with § 205.2 of this chapter.

(i) Child-buying as a ground for denial. An orphan petition must be denied under this section if the prospective adoptive parents or adoptive parent(s), or a person or entity working on their behalf, have given or will give money or other consideration either directly or indirectly to the child's parent(s), agent(s), other individual(s), or entity as payment for the child or as an inducement to release the child. Nothing in this paragraph shall be regarded as precluding reasonable payment for necessary activ ities such as administrative, court, legal, translation, and/or medical services related to the adoption proceedings.

(j) Telegraphic notifications.

(1) Telegraphic notification of approval of advanced processing application. Unless conditions preclude normal telegraphic transmissions, whenever an advanced processing application is approved in the United States, the director shall send telegraphic notification of the approval to the overseas site if a prospective adoptive parent advises the director that the petitioner intends to travel abroad and file the orphan petition abroad.

(2) Requesting a change in visa-issuing posts. If a prospective adoptive parent is in the United States, he or she may request the director to transfer notification of the approved advanced processing application to another visa-issuing post. Such a request shall be made on Form I-824 (Application for Action on an Approved Application or Petition) with the appropriate fee. The director shall send a Visas 37 telegram to both the previously and the newly designated posts. The following shall be inserted after the last numbered standard entry. "To: [insert name of previously designated visa-issuing post or overseas Service office]. Pursuant to the petitioner's request, the Visas 37 cable previously sent to your post/office in this matter is hereby invalidated. The approval is being transferred to the other post/office addressed in this telegram. Please forward the approved advanced processing application to that destination." Prior to sending such a telegram, the director must ensure that the change in pos ts does not alter any conditions of the approval.

(3) Telegraphic notification of approval of an orphan petition. Unless conditions preclude normal telegraphic transmissions, whenever a petition is approved by a stateside Service office, the director shall send telegraphic notification of the approval to the immigrant visa-issuing post.

(k) Other considerations.

(1) I-604 investigations. An I-604 investigation must be completed in every orphan case. The investigation must be completed by a consular officer except when the petition is properly filed at a Service office overseas, in which case it must be completed by a Service officer. An I-604 investigation shall be completed before a petition is adjudicated abroad. When a petition is adjudicated by a stateside Service office, the I-604 investigation is normally completed after the case has been forwarded to visa- issuing post abroad. However, in a case where the director of a stateside Service office adjudicating the petition has articulable concerns that can only be resolved through the I-604 investigation, he or she shall request the investigation prior to adjudication. In any case in which there are significant differences between the facts presented in the approved advanced processing application and/or orphan petition and the facts uncovered by the I-604 investigation, the overseas site may consult directly with the appropriate Service office. In any instance where an I-604 investigation reveals negative information sufficient to sustain a denial or revocation, the investigation report, supporting documentation, and petition shall be forwarded to the appropriate Service office for action. Depending on the circumstances surrounding the case, the I-604 investigation shall include, but shall not necessarily be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation.

(2) Authority of consular officers. An American consular officer is authorized to approve an orphan petition if the Service has made a favorable determination on the related advanced processing application, and the petitioner, who has traveled abroad to a country with no Service office in order to locate or adopt an orphan, has properly filed the petition, and the petition is approvable. A consular officer, however, shall refer any petition which is "not clearly approvable" for a decision by the Service office having jurisdiction pursuant to § 100.4(b) of this chapter. The consular officer's adjudication includes all aspects of eligibility for classification as an orphan under section 101(b)(1)(F) of the Act other than the issue of the ability of the prospective adoptive parents to furnish proper care to the orphan. However, if the consular officer has a well-founded and substantive reason to believe that the advanced processing approval was obtained on the basis of fraud or misrepresentation, or has knowledge of a change in material fact subsequent to the approval of the advanced processing application, he or she shall consult with the Service office having jurisdiction pursuant to § 100.4(b) of this chapter.

(3) Child in the United States. A child who is in parole status and who has not been adopted in the United States is eligible for the benefits of an orphan petition when all the requirements of sections 101(b)(1)(F) and 204(d) and (e) of the Act have been met. A child in the United States either illegally or as a nonimmigrant, however, is ineligible for the benefits of an orphan petition.

(4) Liaison. Each director shall develop and maintain liaison with State Government adoption authorities having jurisdiction within his or her jurisdiction, including the administrator(s) of the Interstate Compact on the Placement of Children, and with other parties with interest in international adoptions. Such parties include, but are not necessarily limited to, adoption agencies, organizations representing adoption agencies, organizations representing adoptive parents, and adoption attorneys.