Guidance for Haiti Convention Cases: Prior Contact

PROHIBITION ON PRIOR CONTACT

Article 29 of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Convention) restricts contact between prospective adoptive parents and the child’s parents, legal custodians, or any other person who has care of the child until the relevant competent authorities:

  • Determine the prospective adoptive parents are suitable and eligible to adopt;
  • Establish that the child is adoptable;
  • Determine that an intercountry adoption is in the child’s best interest, after possibilities for placement of the child within the State of origin have been given due consideration; and
  • Ensure that the necessary consents have been obtained in accordance with Article 4(c) of the Convention.

There are exceptions for an adoption that takes place within a family, or if the contact is in compliance with the conditions established by the competent authority of the State of origin.

Consistent with Article 29 of the Convention, U.S. regulations at 8 CFR 204.309(b)(2) state that USCIS must deny a Form I-800 petition if “the petitioner, or any additional adult member of the household had met with, or had any other form of contact with, the child’s parents, legal custodian, or other individual or entity who was responsible for the child’s care when the contact occurred,” except when: 

  • The first contact occurred only after:
    • USCIS approved the Form I-800A;
    • The competent authority of the Convention country determined that the child was eligible for intercountry adoption; and
    • The required consents to the adoption have been given.
  • The competent authority of the Convention country permitted the earlier contact, either in the particular instance or through laws or rules of general application, and the contact occurred only in compliance with the particular authorization or generally applicable laws or rules. If the petitioner first adopted the child without complying with the Convention, the competent authority’s decision to allow the adoption to be vacated, and to allow the petitioner to adopt the child again after complying with the Convention, will also constitute approval of any prior contact. 
  • The petitioner or spouse (if married) was already related to the child before the adoption in one of the ways mentioned in 8 CFR 204.309(b)(2)(iii).  (Some examples include sibling, aunt, uncle, first cousin, etc.)

NOTES

  • For U.S. purposes, “contact” generally means that a prospective adoptive parent, petitioner, or adult member of the household meets, communicates with, or has a relationship with the child’s birth parents, legal custodian, or individual or entity responsible for the child’s care, before being formally matched by the proper authority. 
  • An authorized adoption service provider’s sharing of general information about a possible adoption placement is not considered “contact” for purposes of this analysis under U.S. regulation. See 8 CFR 204.309(b)(2).
  • USCIS will generally accept a written statement from the Central Authority of the child’s country of origin as evidence of the Central Authority’s approval of any instances of prior contact.

HAITI

Petitioners, U.S. prospective adoptive parents, and their adult household members should generally not have contact with the child’s birth parents, legal custodian or individual or entity responsible for the child’s care (including the crèche) before receiving an official match from Haiti’s Central Authority on Adoption, L’Institut du Bien-Etre Social et de Recherches (IBESR). 

However, IBESR has agreed to review currently pending Convention cases with known prior contact issues on a case-by-case basis. U.S. prospective adoptive parents who filed a Form I-800A application with USCIS, but have not yet filed their Form I-800 petition, and who are aware of prior contact issues with their Convention cases, are strongly encouraged to include a Privacy Act waiver with their Form I-800 petition. This authorizes the U.S. government to communicate with IBESR regarding their case. You may use this suggested language in your Privacy Act waiver, which authorizes USCIS to provide IBESR with necessary information about you:

I, [name of prospective adoptive parent(s)], authorize USCIS to provide my name and limited case specific information as necessary, pertaining to the adoption of [name of child], to the L’Institut du Bien-Etre Social et de Recherches (IBESR) so that the referenced Form I-800 adoption petition may be considered to proceed in accordance with the Hague Adoption Convention procedures. I certify under penalty of perjury that I am who I represent myself to be.

For Convention cases that have not yet filed a dossier with IBESR, the adoption service provider or local representative should alert IBESR to any prior contact issues when the dossier is filed. IBESR intends to clarify its position on prior contact and how it may authorize individual cases to continue as Convention cases. IBESR has indicated that its decisions regarding individual cases will be noted in a letter to prospective adoptive parents.

The IBESR-authorized bonding period before Form I-800 provisional or final approval would not itself lead to a denial of a Form I-800, as long as the contact with the child’s birth parents, legal custodian, or other individual or entity who was responsible for the child’s care occurred after:

  • The Form I-800A was approved;
  • The child was deemed eligible for adoption by the proper authority; and
  • The required consents have been obtained.

NOTE

  • Haiti’s law and procedures on matching prohibit contact between adoption service providers and a crèche or orphanage regarding specific children or potential matches before IBESR makes a formal match.  
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