Classification of Aliens as Children of United States Citizens Based on Intercountry Adoptions Under the Hague Convention, 56832-56867 [E7-18992]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Citizenship and Immigration Services

[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Rules and Regulations]
[Pages 56832-56867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18992]



[[Page 56831]]

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Part II





Department of Homeland Security





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8 CFR Parts 103, 204, 213a et al.



 Classification of Aliens as Children of United States Citizens Based 
on Intercountry Adoptions Under the Hague Convention; Interim Rule

Federal Register / Vol. 72, No. 192 / Thursday, October 4, 2007 / 
Rules and Regulations

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 213a, 299, and 322

[CIS No. 2098-00; DHS Docket No. USCIS-2007-0008]
RIN 1615-AA43


Classification of Aliens as Children of United States Citizens 
Based on Intercountry Adoptions Under the Hague Convention

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends Department of Homeland Security (``DHS'' or 
``the Department'') regulations relating to intercountry adoptions by 
U.S. citizens. First, to facilitate the ratification of the Convention 
on Protection of Children and Co-operation in Respect of Intercountry 
Adoption, signed at The Hague on May 29, 1993 (``Convention''), the 
rule establishes new administrative procedures for the immigration of 
children who are habitually resident in Convention countries and who 
are adopted by U.S. citizens. Second, the rule makes other amendments 
to DHS regulations relating to the immigration of adopted children to 
reflect the changes to those provisions necessary to comply with the 
Convention. The Senate consented to ratification of the Convention in 
2000 conditioned on the adoption of the necessary implementing 
regulations. Accordingly, this rule is necessary to establish the 
regulations necessary for the United States to ratify the Convention.

DATES: Comment date: Written comments must be submitted on or before 
December 3, 2007 to assure consideration.
    Effective date: This rule is effective November 5, 2007.

ADDRESSES: You may submit comments to DHS, identified by DHS Docket No. 
USCIS-2007-0008, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2007-0008 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 
20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Michael Valverde, Chief, Children's 
Issues, U.S. Citizenship and Immigration Services, 111 Massachusetts 
Avenue, NW., 3rd floor, Washington, DC 20529, telephone (202) 272-9176.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Background
    A. Section 101(b)(1)(E) Adoptions
    B. Orphan Adoptions
    C. Convention Adoptions
    D. USCIS Forms Used for Adoption Cases
III. The Purpose of This Rule
IV. The Changes Made by This Rule
    A. Section 101(b)(1)(E) Cases
    B. Orphan Cases
    C. Convention Adoption Cases
V. Regulatory Requirements
    A. Administrative Procedure Act (Notice and Comment)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 12866
    F. Executive Order 13132
    G. Executive Order 12988 Civil Justice Reform
    H. Paperwork Reduction Act
List of Subjects in 8 CFR

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
rule. DHS also invites comments that relate to the economic, 
environmental, or federalism effects of this rule. Comments that will 
provide the most assistance to DHS in developing these procedures will 
reference a specific portion of the rule, explain the reason for any 
recommended change, and include data, information, or authority that 
support such recommended change.
    Instructions: All submissions received must include the agency name 
and docket number (USCIS-2007-0008) for this rulemaking. All comments 
received (including any personal information that may be included in 
the comment) will be posted without change to https://
www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.

II. Background

    The Immigration and Nationality Act (``the Act''), 8 U.S.C. 1101, 
et seq., provides three distinct provisions under which an adopted 
child may be considered, for immigration purposes, to be the child of 
his or her adoptive parents.\1\ Section 101(b)(1)(E) of the Act, 8 
U.S.C. 1101(b)(1)(E), relates to adoptions in general, and provides 
that an adopted child is considered the adoptive parent's child if 
certain custody and residence requirements are met. Section 
101(b)(1)(F) of the Act, 8 U.S.C. 1101(b)(1)(F), facilitates the 
immigration of aliens who qualify as ``orphans,'' if they are adopted, 
or are coming to the United States to be adopted, by U.S. citizens. 
Section 101(b)(1)(G) of the Act, 8 U.S.C. 1101(b)(1)(G), added by 
section 302 of the Intercountry Adoption Act, Public Law 106-279, 
governs the immigration of children who are adopted, or are coming to 
the United States to be adopted, by U.S. citizens under the Convention. 
This background discussion provides an overview of each of these 
provisions.
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    \1\ The Reviser of Statutes has informally codified the Act as 
title 8 of the United States Code. Title 8, however, has not been 
enacted as positive law. For this reason, this rule will refer to 
each particular statutory provision by its section number in the Act 
itself. For ease of reference, the first reference to a particular 
section of the Act will include the corresponding citation in title 
8, United States Code. Subsequent citations will be to the relevant 
section of the Act itself.
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A. Section 101(b)(1)(E) Adoptions

    The first provision of the Act relating to adopted children is 
section 101(b)(1)(E). Under this provision, an adopted child is the 
adoptive parent's child for immigration purposes, if:
     The adoptive parent adopted the child before the child 
reached the age provided in that section, and
     The child has lived with, and been under the legal custody 
of, the adoptive parent for at least 2 years.

This two-year period of legal custody and joint residence can be 
satisfied by periods of legal custody and joint residence that pre-date 
the adoption. 8 CFR 204.2(d)(2)(vii)(C ).

    Until December 7, 1999, the definition in section 101(b)(1)(E) made 
immigration benefits available only to a child who had been adopted 
before the child's sixteenth birthday. Section 1(a)(1) of the Act of 
December 7, 1999, Public Law 106-139, however, amended

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section 101(b)(1)(E) to extend the benefit to a child who was adopted 
after the child's sixteenth birthday, but before the child's eighteenth 
birthday. A child qualifies under this amendment if the child is the 
birth sibling of another adopted child who:
     Qualified for immigration under section 101(b)(1)(E) based 
on the child's adoption, while under the age of 16, by the same 
adoptive parent(s), or
     Qualified for immigration under section 101(b)(1)(F) of 
the Act based on an approved visa petition filed by the same adoptive 
parent(s).
    Section 101(b)(1)(E) of the Act can be the basis of the approval of 
an immigrant visa petition filed by a U.S. citizen or an alien lawfully 
admitted for permanent residence on behalf of an adopted child whose 
adoption meets the requirements of section 101(b)(1)(E). However, 
section 101(b)(1)(E) also applies to adopted children in other 
situations. For example, under section 203(d) of the Act, 8 U.S.C. 
1153(d), the child of an alien who qualifies for an immigrant visa 
under section 203(a) (family-based immigrants), section 203(b) 
(employment-based immigrants), or section 203(c) of the Act (diversity 
immigrants) is generally eligible for an immigrant visa in the same 
visa classification as the parent, if the child accompanies the parent 
to or follows to join the parent in the United States. An adopted child 
whose adoption met the requirements of section 101(b)(1)(E) of the Act 
is eligible to accompany or follow to join his or her parent under 
section 203(d). The same principle would apply in determining whether 
the adopted child could accompany, or follow to join, a nonimmigrant 
alien who is admitted as a student, temporary worker, exchange alien, 
or as any other nonimmigrant in a classification that permits spouses 
and children to come to the United States with the principal 
nonimmigrant alien.
    The current regulations for the approval of immigrant visa 
petitions under section 101(b)(1)(E) of the Act are found at 8 CFR 
204.2(d)(2)(vii). This rule does not discuss section 101(b)(1)(E) 
adoptions further, since it does not revise those requirements, except 
to reflect the upcoming ratification of the Convention.

B. Orphan Adoptions

    The second provision of the Act relating to adopted children is 
section 101(b)(1)(F) of the Act, 8 U.S.C. 1101(b)(1)(F). This provision 
is designed specifically to permit the immigration of alien children 
who qualify as ``orphans,'' as defined by section 101(b)(1)(F), on the 
basis of their adoption by United States citizens. The two year legal 
custody and joint residence requirements of section 101(b)(1)(E) of the 
Act do not apply to orphan cases. That is, if the child qualifies as an 
orphan, the child can immigrate immediately either upon adoption abroad 
or even before adoption, if the adoptive parents intend to complete the 
adoption in the United States. The current regulations for approval of 
immigrant visa petitions on behalf of alien orphans are found at 8 CFR 
204.3. This rule will not discuss section 101(b)(1)(F) adoptions 
further, since it does not revise those requirements, except to reflect 
the upcoming ratification of the Convention.

C. Convention Adoptions

    Developed under the auspices of The Hague Conference on Private 
International Law, the Convention was opened for signature on May 29, 
1993. A copy of the Convention is available on the Hague Conference Web 
site at https://www.hcch.net. The text of the Convention is also 
available on the public docket for this rule at https://
www.regulations.gov, DHS Docket No. USCIS-2007-0008.
    The Convention provides a framework of safeguards for protecting 
children and families involved in intercountry adoption. The Hague 
Conference on Private International Law makes available at https://
www.hcch.net the current list of countries that have become Parties to 
the Convention. According to this Web site, 74 States have become 
Parties to the Convention. This Convention is one of the most widely-
embraced and broadly-accepted conventions developed by the Hague 
Conference.
    The Convention is the first multilateral international instrument 
to recognize that intercountry adoption could ``offer the advantage of 
a permanent home to a child for whom a suitable family cannot be found 
in his or her state of origin.'' (S Treaty Doc. 105-51, at 1). Some 
countries involved in the multilateral negotiations on the Convention 
sought to prohibit intercountry adoptions even for those children 
eligible for adoption for whom a permanent family placement in the 
child's country of origin could not be arranged. On the other hand, 
proponents of intercountry adoption at the Hague Conference believed 
that the best interests of a child would not be served by arbitrarily 
prohibiting a child in need of a permanent family placement from being 
matched with an adoptive family simply because the family resided in 
another country. The Convention reflects a consensus that an 
intercountry adoption may well be in an individual child's best 
interests.
    If the Convention is in force between two countries, then any 
adoption of a child habitually resident in one country by a person 
habitually resident in the other country must comply with the 
requirements of the Convention. The objectives of the Convention are:
     To establish safeguards to ensure that intercountry 
adoptions take place in the best interests of the child and with 
respect for the child's fundamental rights as recognized in 
international law;
     To establish a system of cooperation among contracting 
States to ensure that those safeguards are respected and thereby 
prevent the abduction, sale of, or traffic in children; and
     To secure the recognition in contracting states of 
adoptions made in accordance with the Convention.

The Convention also requires all parties to act expeditiously in the 
processing of intercountry adoptions.

    To accomplish its goals, the Convention makes a number of 
significant modifications to current intercountry adoption practice, 
including three particularly important changes. First, the Convention 
mandates close coordination between the governments of contracting 
countries through a Central Authority in each Convention country. In 
its role as a coordinating body, the Central Authority is responsible 
for sharing information about the laws of its own and other Convention 
countries and for monitoring individual cases. Second, the Convention 
requires that each country involved make certain determinations before 
an adoption may proceed. The sending country must determine in advance: 
That the child is eligible to be adopted; that it is in the child's 
best interests to be adopted internationally; that the birth parents or 
other individuals, institutions or authorities who must, under the law 
of the country of origin, consent to the adoption have freely consented 
to the adoption in writing; and that the consent of the child, if 
required, has been obtained. The sending country must also prepare a 
background study on the child that includes the medical history of the 
child as well as other background information. Third, the receiving 
country must determine in advance: that the prospective adoptive 
parent(s) are eligible and suited to adopt; that they have received 
counseling and training, as necessary; and that the child will be 
eligible to enter and reside permanently in the

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receiving country. The receiving country must also prepare a home study 
on the prospective adoptive parent(s). These advance determinations and 
studies are designed to ensure that the child is protected and that 
there are no obstacles to completing the adoption.
    The United States signed the Convention on March 31, 1994. The 
Senate gave its consent to ratification on September 20, 2000. 146 
Cong. Rec. S8866-8868 (daily ed. September 20, 2000). This consent was 
conditioned on the adoption of the necessary implementing legislation, 
and the completion of any steps that would enable the United States to 
carry out all the obligations of the Convention, as required by the 
implementing legislation. Id. at S8868, Resolution of Ratification at 
sections (a)(1) and (b)(1). Under article 46(2) of the Convention, the 
Convention will enter into force for the United States on the first day 
of the month that begins three months after the United States deposits 
the instrument of ratification. The Secretary of State will give notice 
in the Federal Register of the date on which the Convention enters into 
force for the United States. See 22 CFR 96.17.
    In 2000, Congress passed the implementing legislation, the 
Intercountry Adoption Act (IAA), Pub. L. 106-279, 114 Stat. 825. 
Section 302 of the IAA enacted new section 101(b)(1)(G) of the Act, to 
be codified as 8 U.S.C. 1101(b)(1)(G). Section 101(b)(1)(G) of the Act, 
which will take effect when the Convention enters into force for the 
United States, provides for the classification of a Convention adoptee 
as the child of the U.S. citizen adoptive parent(s). By its terms, the 
Convention applies to any adoption by a person ``habitually resident'' 
in the United States of a child ``habitually resident'' in another 
Convention country, if the child ``has been, is being or is to be 
moved'' to the United States either after the adoption or for purposes 
of the adoption. Convention, article 2(1). Under section 101(b)(1)(G) 
of the Act, however, only a married U.S. citizen whose spouse also 
adopts the child, or an unmarried U.S. citizen who is at least 25 years 
old, may file an immigrant visa petition on behalf of a Convention 
adoptee. For this reason, it will not be possible for anyone who is 
habitually resident in the United States, but who is not a United 
States citizen, to bring a child habitually resident in another 
Convention country to the United States on the basis of a Convention 
adoption.
    Classification as a child under section 101(b)(1)(G) of the Act is 
somewhat similar to classification as an orphan under section 
101(b)(1)(F) of the Act. First, the child's adoption must be sought 
either by a United States citizen and the United States citizen's 
spouse, jointly, or by an unmarried United States citizen who is at 
least 25 years old. The visa petition must be filed before the child's 
sixteenth birthday. As with orphan cases, the two year legal custody 
and joint residence requirements of section 101(b)(1)(E) of the Act 
will not apply to Convention cases. Finally, as with orphans, a 
Convention adoptee may be adopted abroad, but may also be brought to 
the United States for the purpose of adoption.
    There are, however, some notable differences. First, as a matter of 
jurisdiction, section 204(d)(2) of the Act, as amended by section 
302(b) of the IAA, makes clear that section 101(b)(1)(G) of the Act 
relates only to adoptions in which the adopting parent is habitually 
resident in the United States, and the child is habitually resident in 
another country that is a Party to the Convention. Second, unlike 
sections 101(b)(1)(E) and (F) of the Act, section 101(b)(1)(G) applies 
only if the visa petition is filed before a child's sixteenth birthday, 
with no provision to allow the immigration of an older sibling adopted 
by the same parent(s). Third, the child does not have to be an 
``orphan,'' as defined in 101(b)(1)(F) of the Act. The primary criteria 
for classification under section 101(b)(1)(G) of the Act are:
     The child's birth parents (or parent, in the case of a 
child who has one sole or surviving parent because of the death or 
disappearance of, or the child's abandonment or desertion by, the other 
parent), or other persons or institutions that retain legal custody of 
the child, must have freely given their written irrevocable consent to 
the termination of their legal relationship with the child, and to the 
child's emigration and adoption; and
     In the case of a child placed for adoption by his or her 
two living birth parents, the birth parents must be incapable of 
providing proper care for the child.
    The Department notes that section 101(b)(1)(G) of the Act, like 
sections 101(b)(1)(E) and (F), use the term ``natural parents'' to 
describe the individuals to whom an adopted child was born. Adoption 
professionals generally recommend using the term ``birth parents,'' as 
some birth and adoptive parents consider ``natural parent'' offensive 
or insensitive. See, e.g., ``Positive Adoptive Language,'' (Adoptive 
Families of America), available online at https://
www.adoptivefamilies.com/pdf/PositiveLanguage.pdf. Since ``birth 
parent'' and ``natural parent'' are synonymous, this rule uses the term 
``birth parent.''

D. USCIS Forms Used for Adoption Cases

    Section 103(a)(3) of the Act, 8 U.S.C. 1103(a)(3), authorizes the 
Secretary of Homeland Security to prescribe the forms and other papers 
to be used in the administration of the Act. A U.S. citizen begins the 
immigration process for the citizen's alien child by filing a petition 
under section 204(a)(1)(A)(i) of the Act, 8 U.S.C. 1154(a)(1)(A)(i). 
Note that different immigrant visa petition forms are used for 
different types of adoption cases. The Form I-130, Petition for Alien 
Relative, is used for cases filed under section 101(b)(1)(E) of the Act 
and many other family-based petition cases. Form I-600A, Application 
for Advance Processing of Orphan Petition, is used for orphan cases, to 
give the prospective adoptive parents the option of seeking to 
establish their suitability as adoptive parents before they are 
actually matched with a specific child. Parents also have the option, 
under current 8 CFR 204.3, to file just a Form I-600, the Petition to 
Classify an Orphan as Immediate Relative. If they do so, then their 
suitability as adoptive parents and the child's eligibility for 
classification as an orphan are adjudicated in the same proceeding.
    USCIS intends to create two similar forms, the Form I-800A and Form 
I-800, for Convention adoption cases. The new Form I-800A, Application 
for Determination of Suitability as Adoptive Parent(s) for a Convention 
Adoptee, corresponds to the Form I-600A for orphan cases. The Form I-
800A includes three supplements. Form I-800A Supplement 1 will be used 
to identify additional adult members of the prospective adoptive 
parent(s)'s household. A prospective adoptive parent may complete Form 
I-800A Supplement 2 if he or she wants to give consent under the 
Privacy Act of 1976 for DHS to disclose information about the 
prospective adoptive parent's case to the adoption service provider. 
Form I-800A Supplement 3 may be used to obtain an extension of the 
approval of a Form I-800A, if no Form I-800 has yet been filed, as well 
as to submit an updated or amended home study after the Form I-800A has 
been approved. The Form I-800, Petition to Classify Convention Adoptee 
as Immediate Relative, corresponds to the Form I-600 for orphan cases.
    Unlike the current practice for orphan cases, 8 CFR 204.3(d)(3), 
this rule requires a prospective adoptive parent

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seeking to adopt a child from a Convention country to always file the 
Form I-800A first. Only once the Form I-800A is approved will the 
prospective adoptive parents file the Form I-800. This change is 
consistent with the requirements of article 5 of the Convention, as 
discussed later in section IV(C) of this SUPPLEMENTARY INFORMATION.
    Note that the SUPPLEMENTARY INFORMATION section of this Preamble 
refers to the U.S. citizen (and his or her spouse, if any) seeking to 
adopt a Convention adoptee as the prospective adoptive parent(s). This 
term is used in the Supplementary Information because the same person 
(or couple) is the ``applicant'' at the Form I-800A stage, and the 
``petitioner'' at the Form I-800 stage. The text of the new 8 CFR part 
204, subpart C, however, uses the more precise terms, referring as 
appropriate to the ``applicant'' at the Form I-800A stage and the 
``petitioner'' at the Form I-800 stage. Because the spouse of a married 
U.S. citizen must always sign the Form I-800A and Form I-800, and must 
also adopt the Convention adoptee, the singular terms are used to refer 
to both the U.S. citizen and to his or her spouse, if any.

III. The Purpose of This Rule

    To facilitate the ratification of the Convention, this rule 
proposes to amend DHS regulations to provide for the adjudication of 
Convention adoption cases. This rule also makes amendments to the 
orphan provisions that govern cases under section 101(b)(1)(F) of the 
Act and to the regulations governing section 101(b)(1)(E) cases to 
reflect the new Convention procedures.

IV. The Changes Made by This Rule

A. Section 101(b)(1)(E) Cases

    Under article 2 of the Convention, the Convention applies to any 
adoption, or proposed adoption, if:
     The child is habitually resident in one Convention 
country; and
     The adoptive parent(s) is (are) habitually resident in 
another Convention country; and
     The child has immigrated, or will immigrate, to the 
parent's country as a result of, or for purposes of, the adoption.

    The only change that this rule makes to 8 CFR 204.2(d), as it 
relates to adopted children under section 101(b)(1)(E) of the Act, is 
to clarify when a child who is habitually resident in a Convention 
country and who is adopted by a U.S. citizen may be eligible to 
immigrate under section 101(b)(1)(E) of the Act, rather than under 
section 101(b)(1)(G) of the Act. For example, a U.S. citizen may have 
adopted a child from a Convention country while habitually resident in 
that Convention country, and without any present intention to bring the 
child to the United States. Some time after the adoption, the adoptive 
parent may decide to bring the child to the United States. In this 
situation, the adoption would not be subject to the Convention, since 
the child's immigration was not directly the result of the child's 
adoption by someone habitually resident in the United States. If the 
adoptive parent satisfies the two-year custody and residence 
requirement of section 101(b)(1)(E) of the Act by living with the child 
outside the United States, USCIS may approve the parent's Form I-130 
for the child. Thus, the child will be eligible for classification 
under section 101(b)(1)(E) of the Act if the child meets those 
requirements, and it will not be necessary to comply with the 
requirements of section 101(b)(1)(G) of the Act.

    If the adoptive parent seeks to bring the child to the United 
States without first satisfying the two-year custody and residence 
requirement, however, the adoptive parent will need to comply with the 
Convention, the IAA, and the regulations implementing the IAA, 
including this interim rule and the rules promulgated by the Department 
of State. Similarly, the rule addresses the case of a child from a 
Convention country who is already in the United States, whether as a 
nonimmigrant, parolee, or even without inspection and admission, but 
whose habitual residence was in a Convention country immediately before 
the child came to the United States. Such a child will still be deemed 
under this rule to be habitually resident in the other Convention 
country. If the adoptive parent seeks to adopt the child in the United 
States, it will still be necessary to comply with the Convention. Note 
that article 2(1) continues to apply to the adoption of a child 
habitually resident in another Convention country, even if the child 
already ``has been * * * moved to another Contracting State.''

B. Orphan Cases

    This rule does not propose any major revisions to the processing of 
orphan cases that are filed under section 101(b)(1)(F) of the Act. The 
chief purpose of this rule is to establish procedures for Convention 
cases.
    This rule does make one change to the orphan regulations that is 
necessary to reflect the implementation of the Convention. As noted, 
once the Convention enters into force for the United States, the 
Convention and section 101(b)(1)(G) of the Act will govern the 
immigration to the United States of any child who is habitually 
resident in a Convention country and who is adopted, or will be 
adopted, by a U.S. citizen who is habitually resident in the United 
States. It will no longer be possible for a child who is habitually 
resident in a Convention country and who is, or will be, adopted by a 
U.S. citizen habitually resident in the United States, to immigrate 
under section 101(b)(1)(F) of the Act. The adoptive parents will, 
instead, have to use the Convention procedures under section 
101(b)(1)(G) of the Act and new 8 CFR part 204, subpart C. New 8 CFR 
204.3(a)(2) incorporates this principle into the current orphan 
regulation. If, however, the prospective adoptive parent(s) filed the 
Form I-600A or Form I-600 before the date on which the Convention 
enters into force, section 505(b)(1) of the IAA provides that the case 
will continue to qualify as an orphan case even after the Convention 
enters into force. This rule also makes minor changes to 8 CFR 
204.3(a)(1) and (a)(2) to remove unnecessary language, to delete non-
binding procedural requirements, and to improve readability.

C. Convention Adoption Cases

1. Filing Fees
    In orphan cases, the prospective adoptive parent(s) pay(s) one 
filing fee, either upon the filing of the Form I-600A or upon the 
filing of the Form I-600 if no Form I-600A was filed. 8 CFR 
103.7(b)(1). For cases initiated with a Form I-600A, a new filing fee 
was required only if the Form I-600 was filed after the Form I-600A 
approval period expired or if the prospective adoptive parent(s) filed 
more than one Form I-600, for children who were not birth siblings. Id.
    Convention adoption cases will not follow the traditional practice 
from orphan cases. A Form I-800A will be required in every case, and 
must be approved before the Form I-800 may be filed. This change will 
assist the Department in ensuring that the requirements of articles 
5(a) and 17 of the Convention will be satisfied. Under articles 5(a) 
and 17, the receiving country must find that the prospective adoptive 
parent(s) is (are) suitable and eligible to adopt before the sending 
country matches them for adoption.
    The rule retains the practice under which the Form I-800A filing 
fee reflects the cost of adjudicating both the Form I-800A and I-800. 
There will be

[[Page 56836]]

no filing fee when the prospective adoptive parent(s) file(s) one Form 
I-800 after approval of a Form I-800A. As with orphan cases, the cost 
of adjudicating one Form I-800 is included in the Form I-800A filing 
fee. If the prospective adoptive parent(s) file more than one Form I-
800, a separate fee will be required for the second, and any 
subsequent, Form I-800. If the beneficiaries of the multiple Forms I-
800, however, are already siblings before the proposed adoptions, then 
one filing fee will cover each sibling's Form I-800.
    Because USCIS anticipates that the adjudication process and the 
workload for Convention cases will be essentially similar to orphan 
cases, this rule sets the filing fee at the same rate that applies for 
orphan cases. On February 1, 2007, DHS published the notice of proposed 
rulemaking, ``Adjustment of the Immigration and Naturalization Benefit 
Application and Petition Fee Schedule'' proposing a rule that would 
establish a comprehensive revision of USCIS filing fees. 72 FR 4888. 
That rule proposed a fee of $670 for filing Form I-600A, Application 
for Advance Processing of Orphan Petition, and Form I-600, the Petition 
to Classify an Orphan as Immediate Relative. DHS published the fee 
adjustments as a final rule on May 30, 2007, at 72 FR 29851. This rule 
sets the Form I-800A and I-800 filing fees at the same amount as the 
proposed Form I-600A and I-600 fees.
2. New Subpart C to 8 CFR Part 204
    The rule re-designates the current provisions in 8 CFR part 204 as 
subpart A to part 204, and adds new subparts B and C to 8 CFR part 204. 
This rule reserves subpart B. Subpart C governs Convention adoption 
cases. Each specific provision is discussed below. Before dealing with 
the details of the provisions, however, DHS is providing a summary of 
how the Convention adoption process is likely to work.
    Under article 5 of the Convention and section 101(b)(1)(G)(i) of 
the Act, a U.S. citizen who wants to adopt a child habitually resident 
in a Convention country must first obtain a determination that he or 
she (and his or her spouse, if married) will provide proper care to a 
Convention adoptee. USCIS has the authority to make the determination 
that the prospective adoptive parent(s) is (are) suitable for adoption. 
The most critical item of evidence in making this determination is the 
home study. The first step that the prospective adoptive parent(s) 
should take is to work with an adoption service provider to obtain a 
home study. The home study must recommend that USCIS should find that 
the prospective adoptive parent(s) is (are) suitable for adoption. The 
home study preparer must be authorized under Department of State 
regulations at 22 CFR part 96 to complete home studies for Convention 
cases. He or she must also be authorized to conduct home studies under 
the law of the jurisdiction in which the home study is conducted. He or 
she must prepare the home study according to the standards specified in 
new 8 CFR 204.312. Moreover, if the home study preparer is not, under 
22 CFR part 96, an accredited agency or temporarily accredited agency, 
then an accredited agency or temporarily accredited agency must review 
and approve the home study before it can be submitted to USCIS. This 
review requirement does not apply if a public domestic authority, as 
defined in 22 CFR 96.2, prepared the home study.
    Once the prospective adoptive parent(s) has (have) obtained a 
favorable home study, the next step is to file Form I-800A with USCIS. 
In addition to the home study, the prospective adoptive parent(s) would 
submit proof of citizenship, marital status, age (if not married) and 
other evidence as described in new 8 CFR 204.310. In addition to the 
Form I-800A filing fee, the prospective adoptive parent(s) would also 
submit the standard biometrics fee for the applicant, his or her 
spouse, and for each adult member of the household. The definition of 
``adult member of the household'' is discussed more fully in the 
discussion of new 8 CFR 204.301. USCIS would then arrange for the 
collection of fingerprints and other biometric information from these 
individuals. Once the fingerprint results are received, USCIS will 
weigh the evidence to determine whether to approve the Form I-800A. 
USCIS will approve it if the prospective adoptive parent(s) has (have) 
established, based on the evidence of record, that any child whom the 
prospective adoptive parent(s) may adopt will receive proper care. If 
USCIS denies the Form I-800A, the prospective adoptive parent(s) may 
appeal the denial to the Administrative Appeals Office, except in a 
narrow class of cases, discussed later in this rule, in which no appeal 
is permitted.
    If USCIS approves the Form I-800A, the prospective adoptive 
parent(s) may arrange for the submission of the approval notice, the 
home study and other supporting evidence, to the Central Authority of 
the Convention country in which they hope to adopt a child. Note that 
the Convention permits the governmental entity that a Convention 
country designates as the Central Authority to delegate some Central 
Authority functions to other governmental or non-governmental entities. 
In this Preamble and in the rule itself, ``Central Authority'' refers 
not only to the country's designated Central Authority, but also to any 
individual or entity delegated Central Authority functions. If the 
Central Authority proposes a child for an adoption placement, the 
Central Authority will prepare a report addressing the factors that 
make the child eligible for adoption as a Convention adoptee. Once the 
prospective adoptive parent(s) have received this report and have 
decided to accept the placement, they would file Form I-800, with the 
report and other evidence specified in new 8 CFR 204.313. The Form I-
800 must be filed before the prospective adoptive parent(s) have 
actually adopted or obtained legal custody of the child.
    The office with which the prospective adoptive parent(s) files the 
Form I-800 may vary from case to case, or country to country. For 
example, the prospective adoptive parent(s) may file the Form I-800 
with USCIS in the United States before traveling to the Convention 
country. In this situation, the parent(s) would file the Form I-800 and 
supporting evidence with the local USCIS office in the area where the 
parent(s) live. The prospective adoptive parent(s) may alternatively 
choose to file the Form I-800 after arrival in the Convention country, 
and while still physically present there. In such cases, the 
prospective adoptive parent(s) may file the Form I-800 either with an 
overseas USCIS office, or, if there is no USCIS office in the country, 
at the visa-issuing post at which he or she (they) will file the 
child's visa application. A Department of State officer will adjudicate 
a Form I-800 filed with a visa-issuing post, unless the Form I-800 is 
not clearly approvable. The Department of State will refer any Form I-
800 that has been filed with a Department of State officer and that is 
not clearly approvable to a USCIS office for adjudication.
    Whether it is a USCIS or a Department of State officer who 
adjudicates the Form I-800, the issue is fundamentally the same: Does 
the evidence show that the child qualifies for classification under 
section 101(b)(1)(G) of the Act, and will the proposed adoption or 
grant of custody be in compliance with the Convention? If so, the USCIS 
or Department of State officer will grant a provisional approval of the 
Form I-800. If USCIS grants the provisional approval, it would then 
forward the case to the Department of State officer at the visa issuing 
post. If the Department of

[[Page 56837]]

State officer grants the provisional approval, the Department of State 
officer will retain the Form I-800 for further action after the 
prospective adoptive parent(s) has (have) adopted or obtained custody 
of the child.
    Once provisional approval is granted, the prospective adoptive 
parent(s) may file a visa application for the child with the visa 
issuing post with jurisdiction over the child's country of residence. 
The Department of State published in the Federal Register on June 22, 
2006, at 71 FR 35847, a proposed rule that, once adopted as a final 
rule, will govern the adjudication of the visa application. If it 
appears to the Department of State officer that, based on the available 
information, the child would not be ineligible to receive an immigrant 
visa, the Department of State officer will annotate the visa 
application to reflect this conclusion. If the consular office is not 
aware of any ground(s) of inadmissibility that would preclude the 
child's admission to the United States following the adoption or grant 
of custody, the Department of State officer will then notify the 
Central Authority of the Convention country that the prospective 
adoptive parent(s) may proceed with the adoption, or with obtaining the 
grant of custody for purposes of adoption. If the Department of State 
officer becomes aware that the child may be subject to a ground of 
inadmissibility that was not already waived when the Form I-800 was 
provisionally approved, the Department of State officer will advise the 
prospective adoptive parent(s) concerning whether a waiver is 
available, and how to apply for it. The prospective adoptive parent(s) 
will then either complete the adoption in the Convention country or 
else obtain custody of the child for the purpose of bringing the child 
to the United States for adoption. Once this step is accomplished, the 
Department of State officer will, as required by section 301(a)(1)(B) 
of the IAA, perform a final verification of compliance with the 
Convention and the IAA. If the adoption or grant of custody complies 
with the Convention and the IAA, the Department of State officer will 
affix to the adoption or custody order a certification that the 
adoption or custody has been obtained in compliance with the 
requirements of the Convention and the IAA. The Department of State 
officer would then, on behalf of USCIS, grant final approval of the 
Form I-800. The Department of State officer would also issue the 
appropriate visa, unless the Department of State officer determines 
that the child is ineligible for a visa and inadmissible to the United 
States on a ground for which no waiver has been approved. Department of 
State regulations concerning the issuance of visas are codified at 22 
CFR parts 40 through 42.
    Once the Department of State officer issues the visa, the 
prospective adoptive parent(s) may bring the child to the United 
States. An adopted child who is admitted under section 101(b)(1)(G) of 
the Act, and who, after admission for permanent residence, actually 
resides in the United States with the adoptive parent(s) will acquire 
United States citizenship through naturalization by operation of law if 
the requirements of section 320 of the Act, 8 U.S.C. 1431, are met by 
the child's 18th birthday.\2\ If the child will not actually reside in 
the United States, the child's lawful admission would facilitate the 
child's naturalization under section 322 of the Act, 8 U.S.C. 1433. 
Unlike section 320 of the Act, naturalization under section 322 of the 
Act does not occur by operation of law; a formal application for 
naturalization must be filed.
---------------------------------------------------------------------------

    \2\ Section 320 does not, itself, use the term 
``naturalization.'' But ``naturalization'' encompasses any grant of 
citizenship that occurs after a person's birth. See INA section 
101(a)(23), 8 U.S.C. 1101(a)(23).
---------------------------------------------------------------------------

    This rule retains for Convention cases the current practice 
described in the orphan provisions, 8 CFR 204.3(h)(11), that allows a 
Department of State officer to approve a petition, but not to deny. As 
under current practice, a Department of State officer will be required 
to forward to USCIS any Form I-800 that is not clearly approvable. If 
USCIS denies the Form I-800, the prospective adoptive parent(s) may 
appeal the denial to the Administrative Appeals Office, except in a 
narrow class of cases, discussed later in this rule, in which no appeal 
is permitted.
New 8 CFR 204.300--Scope of Subpart C
    Section 204.300 defines the scope of new subpart C, which will 
apply to any Form I-800A or Form I-800 that is filed on or after the 
date the Convention enters into force for the United States. For orphan 
cases, if either the Form I-600A or Form I-600 was filed before that 
date, 8 CFR 204.3 will continue to apply.
    New 8 CFR 204.300(b) makes clear that, once the Secretary of State 
gives notice as specified in 22 CFR 96.17 that the Convention has 
entered into force for the United States, this rule, section 
101(b)(1)(G) of the Act, and the provisions of new subpart C will be 
the only way that an alien child who is habitually resident in a 
Convention country may immigrate to the United States as a direct 
result of an adoption by a U.S. citizen who is habitually resident in 
the United States. Even if the child may also qualify as an orphan 
under section 101(b)(1)(F) of the Act, the adoptive parents will be 
required to comply with the Convention procedures. Immigration under 
section 101(b)(1)(F) of the Act will be available to a child habitually 
resident in a Convention country only if the prospective adoptive 
parent(s) filed either the Form I-600A, or the Form I-600 before the 
Convention and this rule enter into force. New 8 CFR 204.2(d)(vii), 
discussed earlier in this Supplementary Information, addresses the 
circumstances under which a child habitually resident in a Convention 
country may immigrate under section 101(b)(1)(E) of the Act.
New 8 CFR 204.301--Definitions
    New 8 CFR 204.301 provides the definitions that will apply in the 
adjudication of Convention adoption cases. For the most part, the new 
definitions replicate the definitions currently found in 8 CFR 204.3. 
USCIS added new definitions for ``Central Authority,'' ``Convention 
adoptee,'' ``Convention adoption,'' ``Convention,'' ``Convention 
country,'' ``Irrevocable consent,'' and ``Legal Custodian.'' These 
definitions will apply only to Convention adoption cases, not to orphan 
cases under 8 CFR 204.3. The definitions in 22 CFR 96.2 will also apply 
to Convention cases.
    There are a number of definitions under the new section that 
warrant explanation. First, new 8 CFR 204.301 includes a definition of 
``adoption.'' To qualify as an ``adoption,'' a custody order that is 
alleged to be an adoption must create the legal parent-child 
relationship between a minor and someone who is not already the minor's 
legal parent, and terminate the legal parent-child relationship between 
the minor and any prior legal parent(s). The definition is not actually 
new, but a codification of the Board of Immigration Appeals decisions 
in Matter of Mozeb, 15 I&N Dec. 430 (BIA 1975), and Matter of Kong, 14 
I&N Dec. 649 (BIA 1974). The new definition also corresponds to the 
definition the Department of State has adopted at 22 CFR 96.2.
    Some countries allow for ``simple'' or ``semi-plena'' adoptions, or 
a similar child custody arrangement that may be called ``adoption,'' 
but do not create a permanent legal parent-child relationship between 
the child and the custodian. Similarly, the Board of Immigration 
Appeals has noted that in countries that follow traditional Islamic

[[Page 56838]]

law ``adoption'' in the sense required by the Act does not exist. See, 
e.g., Matter of Mozeb, supra; and Matter of Ashree, Ahmed and Ahmed, 14 
I&N Dec. 305 (BIA 1973). The Board has also noted the distinction, 
under Burmese law, between Kittima adoption, which does create a legal 
parent-child relationship, and Appatittha adoption, which does not. 
Matter of Kong, supra. USCIS may not approve a Form I-800 based on one 
of these alternative custody arrangements, unless the alternative 
custody arrangement is cited, not as proof of the child's adoption, but 
as proof that the custodian has authority to bring the child to the 
United States for adoption here.
    This rule also makes changes to the definition of an ``additional 
adult member of the household.'' The home study requirements for orphan 
cases, 8 CFR 204.3(e), require a home study preparer to address the 
presence in the household of adults other than the prospective adoptive 
parent(s). The orphan regulations define ``adult member of the 
household'' to include anyone over the age of 18 whose principal or 
only residence is the same as the residence of the prospective adoptive 
parent(s). 8 CFR 204.3(b). Someone who was under 18 when the Form I-
600A is filed can also be considered an ``adult'' member of the 
household if ``the director has a specific reason, based on the facts 
of the particular case, for requiring an evaluation by a home study 
preparer and/or fingerprint check.'' This rule generally follows that 
practice; however, there are two significant changes. First, the 
reference to a person's ``principal or only'' residence has been 
revised. The new definition includes any person 18 years or older who 
has the same principal residence as the applicant. By removing the term 
``only'' the definition is meant to clarify that it includes those 
individuals who may have another residence, such as an adult son or 
daughter who is away at college for most of the year, but who maintains 
the home being evaluated as their principal residence. Second, the 
current definition does not directly address the presence in the home 
of child care workers, or other household employees, who do not 
actually live there. To improve the ability to protect the best 
interests of adopted children, the revised definition has been expanded 
to specifically include as an ``additional adult member of the 
household'' any person who does not live in the home but whose regular 
presence in the home is relevant to the suitability of the prospective 
adoptive parents as the parents of a Convention adoptee. While this 
definition does expand the potential scope of the home study, the 
expansion will provide information that could be very relevant to the 
adjudication of the Form I-800A.
    New 8 CFR 204.301 also includes a specific definition of ``custody 
for purposes of emigration and adoption'' that will apply to Convention 
cases, if the child will be adopted in the United States, rather than 
abroad. The prospective adoptive parent(s) will have to show that the 
prospective adoptive parent(s), or someone acting on behalf of the 
prospective adoptive parent(s), has (have) obtained ``custody for 
purposes of emigration and adoption.'' This definition is different 
from the provisions in 8 CFR 204.3(d)(iv)(B)(1) and (2), which apply 
only to orphan cases, under which the orphan's prospective adoptive 
parent(s) had to: (i) Show that he or she (they) had custody of the 
child, and that (ii) the individual or entity who had custody 
immediately before he or she (they) acquired it has ``released''the 
child for emigration and adoption. This two-step requirement can prove 
unwieldy and somewhat unnecessary. Once the prior custodian no longer 
has custody, it is not clear why that former custodian should be in a 
position to permit or object to the child's emigration. Under this 
rule, it will be sufficient for the prospective adoptive parent(s) to 
show that whatever court or entity granted custody also expressly 
authorized the custodian to bring the child to the United States for 
adoption. This authorization may be included in the same order that 
granted custody, but may also be included in a separate order.
    Current 8 CFR 204.3(b) specifies who may complete a home study for 
an orphan case. The new definition of ``home study preparer'' for 
Convention adoption cases is significantly different. Only an 
individual who, or agency that, is authorized to do so under 22 CFR 
part 96 may complete a home study for a Convention case. In addition to 
meeting the requirements of 22 CFR part 96, the home study preparer 
must also hold any license or other authorization that may be required 
to conduct adoption home studies under the law of the jurisdiction in 
which the home study is conducted. For example, if the home study is 
conducted in the United States, the preparer must hold whatever license 
or authorization which the law of the State may require home study 
preparers practicing in that State to have. If the home study is 
conducted outside the United States, the preparer must hold any license 
or authorization that may be required under the law of that country to 
conduct home studies there.
    Under section 101(b)(1)(G) of the Act, if consent for the child's 
adoption is given by both of the child's birth parents, the prospective 
adoptive parent(s) must establish that the birth parents are incapable 
of providing proper care for the child. This rule adopts the same 
definition of ``incapable of providing proper care'' that is used in 
orphan cases under 8 CFR 204.3. In an orphan case, the ``incapable of 
providing proper care'' issue arises only if a sole or surviving parent 
releases the child for adoption. By contrast, in Convention cases this 
issue applies only if the child is placed for adoption by both birth 
parents. Under current USCIS policy for orphan cases, an officer is not 
limited to considering economic or financial concerns. Rather, the 
adjudicating officer should consider the entirety of the circumstances 
to determine whether, under the local standards of the country of the 
child's habitual residence, the child's birth parents were incapable of 
providing proper care. The revised definition incorporates this 
principle.
    The rule uses, for Convention cases, a definition of ``irrevocable 
consent.'' Article 4(c)(4) of the Convention provides that a mother's 
consent to a child's adoption can be given only after the child's 
birth. This definition reflects that requirement. Further, the rule is 
actually broader than article 4(c)(4), in that the rule provides that 
in addition, a legal custodian who is not the child's birth parent may 
not give consent before the child's birth. This broader provision is 
simply the logical extension of article 4(c)(4), in that the mother 
would necessarily be required to terminate the legal parent-child 
relationship before any other legal custodian could properly consent to 
an adoption placement. As the child's mother cannot give this consent 
prior to the child's birth, no other individual or entity will have the 
authority to consent to an adoption placement until after the child's 
birth. Note, however, that this provision does not preclude a birth 
father from giving consent to the termination of his legal relationship 
to the child before the child's birth if the birth father is permitted 
to do so under the law of the country of the child's habitual 
residence.
    Section 101(b)(1)(G)(i)(II) of the Act provides that the custodian 
must consent to the child's emigration and adoption. The definition of 
``irrevocable consent'' does not specifically include this element, 
since it could prove impossible for a person to comply with it. For 
example, if a birth parent

[[Page 56839]]

surrendered his or her rights to the custody of a child long before the 
possibility of an intercountry adoption arose, it may not be possible 
to find the birth parent at the time the placement is made in order to 
obtain a more specific consent. But if the birth parent surrendered his 
or her custody rights, and those rights were terminated, the birth 
parent would no longer have a basis to object to the child's adoption. 
Under this rule, the fact that the Central Authority of the other 
Convention country permitted the prospective adoptive parent(s) to 
adopt or obtain custody of the child will be taken as sufficient to 
establish that the necessary consent to the child's emigration has been 
obtained from the relevant custodian. That is, if the Central Authority 
specifies that all the necessary consents have been obtained, it will 
be presumed that the consent was sufficient to establish the statutory 
requirement of consent to emigration and adoption.
    In orphan cases, the term ``sole parent'' is defined by 8 CFR 
204.3(b) strictly to include only the mother of a child born out of 
wedlock who has not been legitimated. Section 101(b)(1)(G) of the Act 
defines the term more broadly. For a Convention adoption, a child is 
deemed the child of a sole parent if the other parent has abandoned or 
deserted the child, or has disappeared from the child's life. This rule 
reflects this broader understanding of ``sole parent.'' A child will be 
deemed to be the child of a sole parent if the child has only one legal 
parent, based on the competent authority's determination that the other 
legal parent has either abandoned or deserted the child, or has 
disappeared from the child's life.
    New 8 CFR 204.301 also incorporates an interpretation relating to 
stepparents that USCIS has adopted for orphan cases. See Adjudicator's 
Field Manual 21.5(d)(4). Under section 101(b)(2), a stepparent 
qualifies as a child's ``parent'' if the marriage creating the 
stepparent relationship occurred before the child's eighteenth 
birthday. For most situations, this provision is of great benefit, 
since it permits intact families to remain together. In the context of 
a Convention adoption petition, however, section 101(b)(2) can have an 
adverse impact. In some countries, a stepparent does not have a legal 
parent-child relationship with a stepchild. Thus, the stepparent may 
not have any right or duty to care for a child, and consequently, may 
not be able to perform any action terminating the non-existent rights 
and duties. Under the policy that USCIS has adopted, and that is 
incorporated into the definition of ``parent,'' a stepparent would not 
be considered a child's parent for purposes of approval or denial of a 
Convention adoption petition, if the prospective adoptive parent(s) 
establish(es) that, under the law of the child's habitual residence, a 
stepparent has no legal parent-child relationship to a stepchild. This 
exception would not apply if the stepparent actually adopted the 
stepchild as specified in section 101(b)(1)(E) of the Act, or if under 
the law of the child's habitual residence, the marriage between the 
parent and stepparent is itself enough to create a legal parent-child 
relationship between the stepparent and stepchild. If marrying the 
child's mother or father makes the stepparent, under the law of the 
Convention country, the child's legal parent, or if the stepparent 
adopted the child, it may be necessary to obtain the stepparent's 
consent. Consistent with the provisions concerning a sole or surviving 
parent, this consent would not be needed if the stepparent abandoned or 
deserted the child, or if the stepparent has disappeared from the 
child's life. Further, if it is established that the stepparent did not 
know of the child's existence, this fact may warrant a finding that the 
stepparent has disappeared from the child's life. Note that this 
definition does not restrict the ability to file an alien relative visa 
petition (Form I-130) based on a stepparent/stepchild relationship if 
the requirements of section 101(b)(1)(B) of the Act are met.
    This rule also establishes a definition of ``suitability as 
adoptive parents.'' Section 101(b)(1)(G)(i)(I) of the Act requires that 
USCIS be ``satisfied that proper care will be furnished the child,'' 
before USCIS may approve a child's immigration as a Convention adoptee. 
The Convention, in turn, requires a finding of their ``suitability'' as 
adoptive parents. As the concept of ``suitability as an adoptive 
parent'' has essentially the same meaning as the concept that USCIS be 
``satisfied that proper care will be furnished the child,'' this rule 
provides that the Convention requirement of ``suitability' is met if 
the evidence establishes the statutory requirement of ``proper care.''
New 8 CFR 204.302--Use of Adoption Service Providers
    Most U.S. citizens seeking to complete an intercountry adoption use 
the services of an adoption agency. This assistance benefits both the 
prospective adoptive parents and USCIS since it is more likely that the 
home study will be properly prepared and that other necessary 
requirements will be properly met. New 8 CFR 204.302(a) makes clear 
that prospective adoptive parents may use such service providers. In 
Convention cases, however, certain adoption services may only be 
provided by individuals who, or agencies that, are authorized under 22 
CFR part 96 to provide these services. An individual who, or agency 
that, is not authorized to do so under 22 CFR part 96 may not provide 
any of these six services, as listed in section 3(3) of the IAA:
     Identifying a child for adoption and arranging an 
adoption;
     Securing necessary consent to termination of parental 
rights and to adoption;
     Performing a background study on a child or a home study 
on a prospective adoptive parent, and reporting on such a study;
     Making non-judicial determinations of the best interests 
of a child and the appropriateness of adoptive placement for the child;
     Post-placement monitoring of a case until final adoption; 
and
     Where made necessary by disruption before final adoption, 
assuming custody and providing child care or any other social service 
pending an alternative placement.
    In some cases, USCIS has observed that it has appeared that an 
adoption service provider has prepared the Form I-600A or Form I-600 or 
other legal documents, and submitted them to USCIS. New 8 CFR 
204.302(b) makes clear that an adoption service provider must be 
authorized under 8 CFR Part 292 to practice before USCIS if the 
adoption service provider will be ``representing'' the prospective 
adoptive parent(s) before USCIS. In order to engage in the regular 
practice of giving legal advice concerning what USCIS forms to complete 
and how to complete them, an individual must be an attorney (or 
supervised law student or graduate) or the accredited representative of 
a not-for-profit agency that has been authorized by the Board of 
Immigration Appeals to practice before USCIS. See 8 CFR 1.1(i), (j) and 
(k) and 8 CFR 292.1. An individual must also be an attorney (or 
supervised law student or graduate) or accredited representative in 
order to file a properly completed notice of appearance (Form G-28) 
(which must be filed by anyone claiming to represent a petitioner or 
applicant before USCIS), and to submit USCIS Forms to USCIS as the 
representative of the prospective adoptive parent(s). Someone who is 
not an attorney (or supervised law student or graduate) or accredited 
representative may only assist ``in the completion of blank spaces on 
printed [USCIS] forms.'' 8 CFR 1.1(k). Pursuant to section 201 of the 
IAA, new 8 CFR 204.302(b) also

[[Page 56840]]

makes clear that an attorney's or accredited representative's legal 
services may not include the provision of any of the six specific 
adoption services specified in section 3(3) of the IAA, unless the 
attorney or accredited representative, in addition to being authorized 
to practice law before USCIS, is also authorized to provide these 
services in Convention cases.
    Furthermore, at least one of the prospective adoptive parent(s) 
must always be a U.S. citizen, who is therefore entitled to protection 
under the Privacy Act, 5 U.S.C. 552a. New 8 CFR 204.302(c) clarifies 
that, under the Privacy Act, USCIS will not disclose information about 
a Convention adoption case to an adoption service provider without the 
written consent of the prospective U.S. citizen adoptive parent(s). If 
the prospective adoptive parent(s) want(s) to give this consent, the 
prospective adoptive parent(s) may sign Form I-800A Supplement 2 and 
submit the Supplement 2 to DHS. Signing the Supplement 2, however, does 
not mean the service provider can act as the prospective adoptive 
parent(s)'s legal representative before DHS; it means only that DHS may 
provide information to the service provider that would otherwise be 
protected from disclosure by the Privacy Act. As with other records 
protected by the Privacy Act, the consent of the citizen adoptive 
parent(s) is not required in order for DHS to disclose information in a 
manner that qualifies as a routine use.\3\
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    \3\ Routine uses for information collected under this rule can 
be found in the current DHS Privacy Act System of Records Notice 
that applies generally to the DHS Central Index System (72 FR 1755, 
January 16, 2007) and in the DHS System of Records Notice for the 
DHS/USCIS-005 Intercountry Adoptions system (72 FR 31086, June 5, 
2007).
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New 8 CFR 204.303--Habitual Residence
    The Convention and section 101(b)(1)(G) of the Act apply to the 
adoption of a child ``habitually resident'' in a Convention country by 
a U.S. citizen ``habitually resident'' in the United States. Neither 
the Convention nor section 101(b)(1)(G) of the Act defines this 
critical term. This interim rule gives this term an expansive scope. 
Any U.S. citizen who is actually domiciled in the United States is 
habitually resident here. Equating ``habitual residence'' with 
``domicile,'' however, would unduly narrow the availability of the 
benefits of the Convention. In many cases a U.S. citizen will be 
residing abroad temporarily, and yet be seeking to bring an adopted 
child to the United States when the United States citizen returns here. 
To permit broad availability of the Convention procedures, new 8 CFR 
204.303(a)(2) provides that, in addition to U.S. citizens who are 
actually domiciled in the United States, a U.