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Prospective and Adoptive Parents
Intercountry Adoption

The Legal Adoption Process

Once you accept the child, the adoption process can begin. Some countries will allow adoption of a child without the prospective adoptive parents' physical presence. If a couple is adopting, the country may require only one member of the couple to be present to conclude the foreign adoption. Other countries' laws do not permit foreigners to adopt a child, but rather, grant you guardianship of the child with permission to remove the child to the United States for subsequent adoption. In order to accomplish the adoption or guardianship, you may have to give power of attorney to the international agency or to a foreign lawyer who will represent you in court during these proceedings. The fee for this is usually part of the foreign program fee. Your adoption agency and/or your foreign attorney also can assist you in securing a passport for the child to enable travel to the United States.

Foreign courts generally require prospective adoptive parents to submit evidence of the child's identity, the child's orphan status or availability for adoption or guardianship, the acceptability of the prospective adoptive parents, and the clearance to adopt from the government of the prospective adoptive parents.

Adoption and guardianship laws in foreign countries vary widely and do not always conform to the equivalent procedure in U.S. courts. Learn about the requirements of the foreign country for the adoption/ guardianship process. It is essential that you ensure that the child you are adopting or gaining guardianship of in a foreign country will meet the Immigration and Naturalization Act's definition of an "orphan." Since foreign adoption laws vary, it is possible in some countries to adopt a child who does not qualify as an "orphan" under U.S. law.

Travel to the foreign country of your child's birth offers you the priceless opportunity to become more familiar with your child's culture. Each country has aspects that are fascinating and beautiful and very different from life in the United States. You also have the chance to take photographs during your trip which you can later share with your child along with examples of arts and crafts you were able to pick up. You will have time to meet and get to know your child and to meet those who have cared for your child during formative years. Your memories could prove priceless to your child later on.

When you have legally adopted the child in a foreign court or a foreign court has given you guardianship of the child and permission for the child to immigrate to the United States, you must then file INS form I-600, "Petition to Classify an Orphan as an Immediate Relative." You must file an individual I-600 petition for each child you plan to adopt. Your I-600A approval should already be on file in the U.S. Embassy or Consulate in the country in which the child resides. You should ensure that it is on file there prior to your filing an I-600 petition. You may file your I-600 petition either in the United States with your local INS office or at the U.S. Embassy or Consulate in the country in which the child resides. No matter where you file the petition, you will need to present information similar to that which you presented to obtain the child's adoption or guardianship. You must present acceptable proof of the child's identity, such as a birth certificate, national identity card, or passport. Next, you must present proof of the child's orphan status. In general, such proof can consist of (1) evidence that both parents have died (such as their death certificates); (2) evidence that a court of competent authority declared the child abandoned or severed the biological parent(s) ties by declaring the child a ward of the State; or (3) evidence that the child has been irrevocably relinquished to an orphanage by biological parent(s). You must also present proof that a court of competent authority has granted you guardianship of the child or that such a court finalized your adoption of the child.

Finally, you must present Form I-864, the Affidavit of Support signed before a notary public or immigration or consular officer, and certified copies of tax returns from the three most recent taxable years that were filed with the IRS. The Form I-864 is a legally enforceable contract that applies to all immigrants. This form certifies that the prospective parents can demonstrate "adequate means of financial support" and that they agree to reimburse any government or private agency that provides their child with any means-tested public benefit, such as food stamps or welfare.

Copies of Federal tax schedules should bear a simple signed declaration that the copies are true and unchanged from the originals-this statement is then notarized. Tax returns must verify that the parents' income is 125% above the Federal poverty guidelines set by the Department of Health and Human Services. You can obtain Form I-864 by calling your local INS office. Form I-864 and the tax returns must be filed at the time of the visa interview by either the parents or the child's escort.

The Department of State Consular Officer who adjudicates the child's immigrant visa application is required to conduct an investigation, called the "I-604 Orphan Investigation," prior to issuing an immigrant visa for the child. The purpose of this investigation is two-fold: (1) to verify the orphan status of the child and (2) to ensure that the child does not suffer from a medical condition of which the adoptive parents are not already aware and willing to accept. As a part of the immigrant visa application process and the I-604 Orphan Investigation, the child will be examined by a U.S.-approved foreign physician.

There are two immigrant visa categories for foreign orphans. The IR-3 (IR stands for "immediate relative") denotes a child adopted overseas under the following two conditions: (1) the adoptive parent (if a single parent) or both parents (if a married couple) saw and observed the child prior to the adoption and (2) the foreign adoption bestows upon both adoptive parents and child the same rights, responsibilities, and privileges as would an adoption in the United States. Children who are issued IR-3 immigrant visas do not, under Federal laws, require readoption in the United States.

The other orphan immigrant visa category is the IR-4 category, which denotes a child coming to the United States for adoption. An IR-4 visa is issued to a child under the following circumstances: (1) the foreign country's laws only permit the adoptive parents to obtain guardianship of the child, rather than to fully adopt the child in that country and (2) the prospective adoptive parent(s) did not see and observe the child prior to the adoption process. With the IR-4 visa, the foreign adoption does not meet the U.S. equivalent requirements of severing biological parent(s) ties and/or ensuring that both the adoptive parents and child have the same rights, responsibilities, and privileges. Children who have been issued IR-4 immigrant visas must be adopted or readopted after they enter the United States. Your adoption agency should be able to tell you what kind of a visa your child will require.

This material may be reproduced and distributed without permission; however, appropriate citation must be given to the National Adoption Information Clearinghouse.

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