Chapter 1 - Purpose and Background

A. Purpose

The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption^[1] is an international treaty that provides a framework of safeguards to protect the best interests of children and families involved in intercountry adoptions. By setting clear procedures and prohibiting improper financial gain, the Convention provides greater security, predictability, and transparency for all parties to the adoption, including children, birth parents, and adoptive parents.

The Convention also ensures the appropriate authorities in a child’s country of origin deem a child eligible for adoption and give due consideration to an adoption placement within the child’s country of origin, before placing the child for intercountry adoption.

The Convention applies to the adoption of a child who:

• Is habitually resident in one Convention country (the country of origin) and is being adopted by a U.S. citizen habitually resident in another Convention country (the receiving country); and
• Has been, is being, or is to be moved from the country of origin to the receiving country, either after the adoption or for the purposes of emigration and adoption.^[2]

A prospective adoptive parent (PAP)^[3] must generally follow the Convention process^[4] if the PAP:

• Is a U.S. citizen^[5] who is habitually resident^[6] in the United States;^[7] and
• Seeks to adopt a child who is habitually resident in a Convention country^[8] (other than the United States) on or after April 1, 2008, and on or after the date the Convention entered into force for the other country.^[9]

B. Background

The United States signed the Hague Adoption Convention in 1994, signaling support for the principles and standards set forth in the Convention. In 2000, Congress consented to the ratification of the Convention and enacted implementing legislation, the Intercountry Adoption Act of 2000 (IAA).^[10] In 2006, the Department of State (DOS) published regulations to establish the regulatory framework for accreditation and approval of adoption service providers required under the Convention and the IAA.^[11] In 2007, DHS published Hague Adoption Convention regulations to implement the IAA.^[12] The United States ratified the Convention in December 2007 and the Convention subsequently entered into force for the United States on April 1, 2008. On the same day, DHS Hague Adoption Convention regulations noted above also took effect.

Although the United States implemented Convention procedures for intercountry adoptions in 2008, the orphan intercountry adoption process and family-based immigration process for adopted children are also available for eligible children, depending on their country of habitual residence.^[13]

Key Aspects of Hague Adoption Convention Process

The Convention and U.S. implementing regulations increase accountability and transparency in the intercountry adoption process by generally requiring the accreditation and approval of adoption service providers.^[14] The Convention safeguards against the trafficking, abduction, or sale of children and against the unintentional adoption and emigration of a child who is not eligible to be adopted or whose best interests may not be served through intercountry adoption.

U.S. procedures for Convention cases are aimed at identifying any potential eligibility issues under U.S. immigration law before a PAP adopts the child (or obtains legal custody for the purpose of emigration and adoption) in the child’s country of origin so that every eligible child adopted through the Convention process can enter and reside permanently in the United States.

Before a PAP adopts (or obtains legal custody of) a child in the country of origin, USCIS determines whether the child appears eligible to be classified as a Convention adoptee under the Immigration and Nationality Act (INA), and DOS determines whether the child appears to meet the criteria for visa eligibility if immigrating to the United States.^[15]

After the PAP adopts the child (or obtains legal custody), the child’s country of origin certifies that the adoption complied with the Hague Adoption Convention and DOS reviews the documents again for Convention compliance before making a final decision and issuing a Hague Adoption Certificate and immigrant visa.^[16]

C. Scope

For the Convention process, the PAP must first file an application to determine the PAP’s suitability and eligibility as an adoptive parent^[17] and then file a petition to determine the child’s eligibility as a Convention adoptee.^[18] This Part D addresses the requirements for petitions used to determine children’s eligibility as Convention adoptees.

USCIS guidance does not address other adoption-related requirements, such as those of the child’s country of origin, state of proposed residence, or other federal agencies, such as DOS, or the U.S. Department of Health and Human Services (HHS).^[19]

Additionally, this part does not address the specific requirements for adopted children to obtain U.S. citizenship.^[20]

D. Legal Authorities

• The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (PDF) (Hague Adoption Convention)
• The Intercountry Adoption Act of 2000 (PDF) (IAA)
• INA 101(b)(1)(G) – Definition of child (for Convention adoptee)
• INA 201(b) – Immediate relatives
• INA 204 – Procedure for granting immigrant status
• 8 CFR 204 Subpart C – Intercountry adoption of a Convention adoptee
• 22 CFR Part 96 – Intercountry adoption accreditation and approval standards and process

Footnotes

[^ 1] This Convention (PDF) is referred to in this part as the Hague Adoption Convention or Convention.

[^ 2] See Hague Adoption Convention (PDF), Article 2(1).

[^ 3] USCIS uses the term PAP in this part to refer to the applicant or petitioner and the applicant or petitioner’s spouse (if any) as applicable.

[^ 4] For more information on determining the applicability of the Hague Adoption Convention see Part A, Adoptions Overview, Chapter 2, Adoption Processes, Section A, Hague Adoption Convention, Subsection 1, Applicability [5 USCIS-PM A.2(A)(1)].

[^ 5] In the case of a married couple, this applies if either of the PAPs is a U.S. citizen. However, only one PAP must be a U.S. citizen.

[^ 6] For more information on habitual residence determinations, see part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].

[^ 7] If the PAP is a U.S. citizen residing outside of the United States and seeks to adopt a child residing in a Hague Adoption Convention country, the PAP may be able to use the U.S. Convention process (even if the PAP does not intend to immediately immigrate the child to the United States), provided the country of origin allows the PAP to complete the Convention process from the Convention country and the PAP can obtain the Hague Adoption Certificate or Hague Custody Certificate to complete the process. The PAP may also be required to follow the law and procedures for immigration and adoption in the country where the PAP resides. For information on determining which U.S. immigration process applies, see Part A, Adoptions Overview [5 USCIS-PM A].

[^ 8] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage.

[^ 9] The Hague Adoption Convention entered into force for the United States on April 1, 2008. For information on the entry into force date for each country, see the Hague Conference on Private International Law’s Status Table webpage.

[^ 10] See Pub. L. 106-279 (PDF), 114 Stat. 825 (October 6, 2000).

[^ 11] See 71 FR 8064 (Feb. 15, 2006). See 22 CFR Part 96.

[^ 12] See 72 FR 56832 (Oct. 4, 2007). See 8 CFR 204 Subpart C.

[^ 13] See Part A, Adoptions Overview [5 USCIS-PM A] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) applies, depending on the PAP’s circumstances.

[^ 14] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5]. See 22 CFR 96.2. See DOS’s Convention Adoption Process webpage for additional information.

[^ 15] For information on the role of DOS as the U.S. Central Authority for the Hague Adoption Convention and the role of USCIS, see Part A, Adoptions Overview, Chapter 1, Purpose and Background, Section C, Background, Subsection 2, Federal Agency Roles [5 USCIS-PM A.1(C)(2)].

[^ 16] See Hague Adoption Convention (PDF), Article 23.

[^ 17] See the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A). For information on suitability applications, see Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].

[^ 18] See the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).

[^ 19] For general information on other countries’ requirements, see DOS’s Country Information webpage. For more information on requirements of the state of proposed residence, see HHS’ Child Welfare Information Gateway’s State Laws Related to Adoption webpage. For DOS guidance, see 9 FAM 502.3, Adoption-based Classifications and Processing.

[^ 20] For more information on citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F].