Hague Convention on Intercountry Adoption; Intercountry Adoption Act of 2000; Consular Officer Procedures in Convention Cases, 61301-61306 [E7-21340]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 72, Number 209 (Tuesday, October 30, 2007)]
[Rules and Regulations]
[Pages 61301-61306]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21340]


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DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice 5976]
RIN 1400-AC40


Hague Convention on Intercountry Adoption; Intercountry Adoption 
Act of 2000; Consular Officer Procedures in Convention Cases

AGENCY: Department of State.

ACTION: Final Rule.

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SUMMARY: This rule amends Department of State regulations to provide 
for intercountry adoptions that will occur pursuant to the Hague 
Convention on Protection of Children and Co-operation in Respect of 
Intercountry Adoption (Convention) and the Intercountry Adoption Act of 
2000 (IAA). This rule addresses consular officer processing of 
immigration petitions, visas, and Convention certificates in cases of 
children immigrating to the United States in connection with an 
adoption covered by the Convention.

EFFECTIVE DATE: This rule is effective October 30, 2007. Information 
about the date the Convention will enter into force is provided in 22 
CFR 96.17.

FOR FURTHER INFORMATION CONTACT: Barbara J. Kennedy, Legislation and 
Regulations Division, Visa Services, United States Department of State, 
2401 E Street, NW., Room L-603, Washington, DC 20520-0106; telephone 
202-663-1206 or e-mail KennedyBJ@state.gov.

SUPPLEMENTARY INFORMATION:

Background

    The Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (Convention) is a multilateral treaty 
that provides a framework for the adoption of children habitually 
resident in one country party to the Convention by persons habitually 
resident in another country party to the Convention. It establishes 
procedures to be followed in such adoption cases and imposes safeguards 
to protect the best interests of the children at issue. It also 
provides for recognition of adoptions that occur pursuant to the 
Convention. In the United States, the implementing legislation for the 
Hague Convention is the Intercountry Adoption Act of 2000 (IAA). To 
implement the Convention, the IAA makes two significant changes to the 
Immigration and Nationality Act (INA): (1) It creates a new definition 
of ``child'' applicable in Convention adoption cases, found at INA 
101(b)(1)(G), that roughly parallels the current definition of 
``child'' in INA 101(b)(1)(F) with respect to an orphan, but that 
applies only to children being adopted from Convention countries. (2) 
It incorporates Hague procedures into the immigration process for 
children covered by INA 101(b)(1)(G), most directly by precluding 
approval of an immigration petition under this classification until the 
Department has certified that the child was adopted (or legal custody 
was granted for purposes of emigration and adoption) in accordance with 
the Convention and the IAA. Separately, section 301 of the IAA requires 
all Federal, State, and local domestic entities to recognize adoptions 
or grants of legal custody that have been so certified by the 
Department.
    On October 4, 2007, the Department of Homeland Security (DHS) 
published in the Federal Register at 72 FR 56832 an interim rule on 
``Classification of aliens as children of United States citizens based 
on intercountry adoptions under the Hague Convention'' (8 CFR parts 
103, 204 and 213a) (``DHS Rule''). That rule governs the adjudication 
of Forms I-800A (relating to the suitability of prospective adoptive 
parents for intercountry adoption under the Convention) and Forms I-800 
(relating to the classification of a Convention adoptee as the child of 
the adoptive parent(s) for purposes of the immigration and nationality 
laws of the United States). Additional regulations implement other 
aspects of the Convention and the IAA, such as those on the 
accreditation/approval of adoption service providers to perform 
adoption services in cases covered by the Convention (22 CFR part 96), 
the preservation of records (22 CFR part 98), and certificate issuance 
with respect to United States court proceedings (22 CFR part 97). 
Further background on the Convention and the IAA is provided in the 
Preamble to the Final Rule on the Accreditation of Agencies and 
Approval of Persons under the Intercountry Adoption Act of 2000, 
Sections III and IV, 71 FR 8064-8066 (February 15, 2006).

Discussion of Comments on the Proposed Rule

    This section provides a discussion of the comments received by the 
Department of State on the proposed rule.
    1. Comment: Commenters requested elaboration of the operational 
component of this rule, including the mechanics of how the applications 
for petition approval and visa eligibility will be submitted. 
Specifically, who completes and submits the petition to the consular 
officer and at what stage in the process? Also, will it be possible for 
adoption service providers to submit petitions abroad, with required 
documentation and fees, on behalf of prospective adoptive parents?
    Response: Once the Form I-800A, Application for Determination of 
Suitability to Adopt a Child from a Convention Country, has been 
approved, a Form I-800, Petition to Classify Convention Adoptee as 
Immediate Relative, may be submitted either to DHS or to the consular 
officer, as under the current procedure in immigration cases involving 
orphan adoption. The DHS Rule, at 8 CFR 204.308, indicates that the 
proper filing location for Form I-800A and Form I-800 will be specified 
on the instructions for each form. The Supplementary Information, at 72 
FR 56841-42, states that DHS anticipates that the filing process for 
Convention cases will be

[[Page 61302]]

similar to the process for orphan cases. The Form I-800A will always be 
filed in the United States with U.S. Citizenship and Immigration 
Services (USCIS). The Form I-800 may also be filed with USCIS, either 
at a Stateside office, or abroad, if the prospective adoptive parent(s) 
live abroad and USCIS has an office in the country in which they live. 
They may file the Form I-800 with a visa-issuing post if (a) they are 
physically present within the territory of the visa-issuing post when 
they file the Form I-800, and (b) either there is no USCIS office in 
that country or that USCIS office in country has delegated its 
authority to accept the filing of Forms I-800 to the visa-issuing post. 
The DHS Rule has no provision for the filing of the petition abroad 
when the prospective adoptive parents are physically present in the 
United States. As soon as the Form I-800 has been provisionally 
approved, however, the Form I-800 would generally be forwarded to the 
visa-issuing post for final approval once the adoption is completed. 8 
CFR 204.313(g)(2).
    As for the visa application, there are no absolute requirements for 
appearance at a consular post and the signing of the application until 
the visa interview, which would generally not be practicable until 
after the adoption has occurred. The unsigned visa application, with 
supporting documents and fees, may be filed with a consular officer by 
an adoption service provider, on behalf of prospective adoptive 
parents, if not present, so that the application may be initially 
reviewed.
    2. Comment: One commenter requested further elaboration of the 
provisional approval process, especially regarding when the provisional 
approval will occur and what information will be required for the 
provisional approval determination.
    Response: The DHS Rule explains much of this process. The basic 
steps in the provisional approval process are summarized as follows.
    Pursuant to the DHS Rule, the prospective adoptive parent(s) file 
Form 1-800A with the United States Citizenship and Immigration Service 
(USCIS), together with a home study (prepared in accordance with 8 CFR 
204.311 by someone authorized under 22 CFR Part 96 and 8 CFR 204.301 to 
complete home studies for Convention cases), and other evidence as 
described in new 8 CFR 204.310.
    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. 8 CFR 
204.312(d)(2). The Central Authority must receive the same home study 
as was submitted to USCIS.
    Once the prospective adoptive parent(s) have received a report and 
any other information on a child from the relevant Central Authority 
and have decided to accept the referral, they would file Form I-800, 
with the report and other evidence specified in new 8 CFR 204.313, with 
the USCIS office or visa-issuing post specified in the Form I-800 
instructions. This step must occur before the prospective adoptive 
parent(s) have adopted or obtained legal custody of the child.
    At this point, a USCIS officer or, if the Form I-800 is properly 
filed with a visa-issuing post, a consular officer will provisionally 
adjudicate the Form I-800. (If the prospective adoptive parent(s) filed 
an application for waiver of any known or suspected ground of 
inadmissibility at the same time they filed the Form I-800 at a 
consular office, the consular officer will forward both the Form I-800 
and the waiver application to the appropriate USCIS office for decision 
as to approval of the waiver and provisional approval of the Form I-
800.)
    If provisional approval of the I-800 petition is granted, the 
prospective adoptive parent(s) may then file a visa application for the 
child with the visa issuing post with jurisdiction over the child's 
country of residence. Section 42.24(g) sets forth the documentary 
requirements for the visa application, and states which requirements 
may be satisfied to the extent practicable. This may vary from case to 
case. In requiring some evidence only to the extent practicable, the 
rule recognizes that some evidence may not be obtainable at this early 
stage. However, in order to obtain as accurate an assessment of the 
case as possible at the initial review stage, it is important that 
supporting documents not be omitted unless obtaining them is truly not 
practicable under the circumstances of the particular case.
    If, after reviewing the information provided, it appears to the 
consular officer that the child would not be ineligible, based on the 
information provided, to receive an immigrant visa, the officer will 
annotate the visa application to reflect this conclusion. See section 
42.24(h).
    If a USCIS officer or a consular officer has provisionally approved 
the I-800 petition and a consular officer has annotated the visa 
application, the consular officer is to notify the relevant Central 
Authority that the steps required by Article 5 of the Convention have 
been taken. (Article 5 of the Convention requires the receiving country 
to have: (a) Determined that the prospective adoptive parent(s) are 
eligible and suited to adopt; (b) ensured that the prospective adoptive 
parent(s) have been counseled as may be necessary; and (c) determined 
that the child is or will be authorized to enter and reside permanently 
in the receiving country.) The prospective adoptive parent(s) may then 
either complete the adoption in the Convention country or else obtain 
legal custody for the purpose of adoption.
    After receiving appropriate notification from the Convention 
country that the adoption has occurred or, in custody for purpose of 
adoption cases, that legal custody has been granted, including a copy 
of the adoption or custody order, the consular officer will verify 
Convention and IAA compliance before affixing a certification to that 
effect to the adoption order. In verifying compliance, the consular 
officer must consider U.S. prior notification under Article 5 plus 
appropriate notification from the country of origin as prima facie 
evidence of compliance with the Convention and the IAA. In other words, 
the prior determination plus appropriate notification of the adoption 
or grant of legal custody is sufficient to establish compliance, so 
long as the consular officer does not have a well-founded and 
substantive reason to believe that the adoption or the grant of legal 
custody was non-compliant with the Convention or the IAA. At that 
point, the consular officer will finally adjudicate the Form I-800 and 
the visa application. If, however, the consular officer determines that 
the Form I-800 is not approvable, the consular officer will refer the 
case to USCIS for review and decision. The Department does not 
anticipate that this situation will arise often, if at all, because of 
the procedural safeguards inherent in the Convention adoption process.
    3. Comment: One commenter asked what ``appeal process'' would be 
provided for prospective adoptive parents if, pursuant to section 
42.24(h), they were informed of an ineligibility.
    Response: Under the DHS Rule, prospective adoptive parents may file 
a waiver application for any inadmissibilities when the I-800 petition 
is filed. See 8 CFR 204.313(d)(5). After provisional approval of the 
petition, if an ineligibility is found that has not been overcome by a 
waiver submitted at the provisional approval stage, the visa 
application will be denied and prospective adoptive parents will be 
advised whether a waiver is available

[[Page 61303]]

and, if so, how to apply for it. As in any other immigrant visa case, 
an applicant will have an opportunity to present any additional 
evidence that may overcome the grounds of ineligibility, and to submit 
an application for a waiver if the visa is refused because of an 
ineligibility for which a waiver is available. See 22 CFR 42.81 and 8 
CFR 212.7.
    If USCIS denies a Form I-800A or a Form I-800, the prospective 
adoptive parents may appeal the denial, as specified in 8 CFR 204.314. 
The traditional legal doctrine of non-reviewability of a decision to 
deny a visa application, however, applies to Convention adoption cases 
to the same extent as any other visa application case.
    4. Comment: One commenter asked whether there would be a time frame 
for provisional review.
    Response: The DHS rule, which governs the provisional approval 
process, does not include a time frame for provisional review. This 
rule also does not include a time frame for the initial review of the 
visa application.
    5. Comment: One commenter asked whether an agency could petition 
for provisional approval on a child's behalf before a prospective 
adoptive parent is identified.
    Response: No. The Form I-800A for prospective adoptive parent(s) 
must be approved before a Form I-800 petition can be submitted on 
behalf of a particular child. However, an adoption service provider 
could gather the relevant documents in advance so as to expedite the 
submission of the I-800 petition once prospective adoptive parent(s) 
are identified.
    6. Comment: One commenter asked whether the provisional approval of 
the I-800 petition had to take place in the country of origin or 
whether, in some cases, it could take place at the local USCIS office.
    Response: The office with which the prospective adoptive parent(s) 
file the Form I-800 petition will vary. See DHS Rule, 8 CFR 204.308. If 
the Form I-800 is properly filed with a Stateside USCIS office, that 
office will make the decision regarding provisional approval. If the 
Form I-800 is properly filed abroad, the USCIS office or visa-issuing 
post abroad will make this decision.
    7. Comment: One commenter suggested that the sixth word from the 
end of 42.24(f) be changed from ``return'' to ``forward,'' since in 
some cases DHS may not have seen the petition previously.
    Response: We have made the suggested change, and have also replaced 
the reference to 22 CFR 42.43 with a reference to 8 CFR 204.313(i)(3), 
which requires consular officers to forward any Form I-800 petition 
that is not clearly approvable, along with accompanying evidence, to 
USCIS.
    8. Comment: One commenter asked about how information about the 
specific documents required from each country of origin would be shared 
with prospective adoptive parents and adoption service providers.
    Response: As currently, the information required from the country 
of origin will be available in the country-specific adoption flyer 
which is available both on www.travel.state.gov and from the relevant 
United States Consulate.
    9. Comment: One commenter expressed concerns about the language in 
the explanatory section of the proposed rule, noting that generally the 
adoption service provider would be delivering the United States 
Government's Article 5 notification. The commenter expressed a 
preference that the consular officer directly notify the foreign 
Central Authority. The commenter also requested details about the 
acceptable methods of transmission.
    Response: How the notification is transmitted to the country of 
origin will vary depending on the practices and procedures set up by 
the relevant consular post. This language was included to make clear 
that, although the notification would be originated by the consular 
officer, it could be delivered by adoption service providers. The 
United States approach to implementation of the Convention, as set 
forth in the IAA, has been to use certain adoption service providers to 
perform some Central Authority functions, in accordance with 22 U.S.C. 
part 96. (Convention Article 22 permits a Convention country to use 
accredited bodies and approved persons to perform certain tasks in the 
adoption process). Such providers are capable of transmitting this 
notification securely and expeditiously, in a method that will depend 
on the circumstances of the particular country.
    10. Comment: One commenter asked for clarification of 42.24 (j), 
specifically what type of notification was anticipated, and suggested 
changing the term ``notification'' to ``documentation.''
    Response: The type of notification that will satisfy section 
42.24(j) may vary depending on the Central Authority of the relevant 
country of origin. The United States expects to work diplomatically 
with these Central Authorities to ensure that the necessary 
notification is obtained. ``Notification'' is the term used here 
because this language is drawn from the IAA, which refers to 
``appropriate notification'' from the foreign Central Authority as a 
prerequisite to certificate issuance.
    11. Comment: One commenter asked how the rule would affect the 
length and the number of any visits the prospective adoptive parents 
take to the country of origin.
    Response: Because both the I-800A and the I-800 may be filed 
domestically, and the visa application may be filed without the 
physical presence of the applicant if not practicable, the rule will 
not necessarily impact the length or number of visits to the country of 
origin.
    12. Comment: One commenter asked how provisional approval would 
affect the timing of the Interstate Compact (ICPC) approval.
    Response: The DHS rule determines at what point in the process the 
petitioner for the child must comply with any U.S. State's pre-adoption 
requirements, including any State requirement to comply with ICPC. See, 
e.g., 8 CFR 204.305 (State preadoption requirements); 8 CFR 204.310 
(filing requirements for Form I-800A); 8 CFR 204.311 (Convention 
adoption home study requirements); 8 CFR 204.313 (filing and 
adjudication of a Form I-800).

Summary of the Final Regulation

    This final rule establishes new procedures that consular officers 
will follow in adjudicating cases of children whose cases are covered 
by the Convention. When children habitually resident abroad in a 
Convention country have been, are being, or will be moved in connection 
with adoption by parents habitually resident in the United States, the 
Convention applies. Although much of the petition and visa processes 
will be similar to the current orphan case procedures, there are 
important changes. Perhaps most significantly, United States 
authorities will perform the bulk of petition and visa adjudication 
work much earlier than under current practice. This early review will 
enable United States authorities to make the determination required by 
Article 5 of the Convention that the child will be eligible to enter 
and reside permanently in the receiving state prior to the adoption or 
grant of legal custody. The regulation also provides that, once the 
country of origin has provided appropriate notification that the 
adoption or grant of legal custody has occurred, including a copy of 
the adoption or custody order, the consular officer will issue a 
certificate to the United States adoptive or prospective adoptive 
parent(s) if the officer is satisfied that the requirements of the 
Convention and IAA have been met, and only if so will the consular

[[Page 61304]]

officer approve the immigration petition and complete visa processing. 
To streamline the process, the regulation departs from current practice 
by allowing consular officers to approve petitions for children whose 
cases are covered by the Convention regardless of whether the petition 
was originally filed with the Department or DHS.
    The Department is issuing the rule as final with minor changes, 
taking into account the comments received and the DHS Rule. In 
particular, sections 42.24(f), (h) and (m) were slightly edited to 
reflect the fact that a petition filed originally with a consular 
officer would be ``forwarded,'' not ``returned,'' to DHS if the 
consular officer concluded that it was not clearly approvable, and to 
reflect the correct regulations. Section 42.24(d) was modified by the 
deletion of a requirement that a consular officer approve the petition, 
which would not have allowed for visa issuance in a case in which DHS 
approved a provisionally-approved petition after the consular officer 
had returned it as not clearly approvable. In addition, section 
42.24(b) was changed to correspond more closely to the DHS rule with 
respect to the scope of application of the Convention and the handling 
of transition cases and cases involving a Convention adoptee who seeks 
to travel to the United States as a nonimmigrant for purposes of 
naturalization under INA section 322, as specified in 8 CFR 
204.313(b)(2). Sections 42.24(e) and (h) were amended to clarify the 
operations of waivers of ineligibility. Also, a cross-reference making 
the definitions in 22 CFR 96.2 apply to 22 CFR 42.24 was added for 
consistency with all other relevant rules. (The DHS Rule and the 
Department of State rules for 22 CFR 96, 97, 98, 99 and now 22 CFR 
42.24 use the same definitions for the same terms when those terms are 
defined in 22 CFR 96.2.) Consequently, the defined terms ``Convention 
country'' and ``legal custody'' were used in sections 42.24(b), (f), 
and (j). In addition, section 42.24(j) was amended to clarify that the 
country of origin's provision of appropriate notification, in addition 
to the consular officer's notification pursuant to Article 5, is 
required to establish prima facie evidence of compliance with the 
Convention and the IAA. Finally, the Department further modified 
section 42.24(h) to reflect the possibility that a visa ineligibility 
identified by a consular officer during the initial review could be 
either overcome or, after forwarding to DHS, waived.

Regulatory Findings

Administrative Procedure Act

    In accordance with provisions of the Administrative Procedure Act 
governing rules promulgated by federal agencies that affect the public 
(5 U.S.C. 552), the Department published a proposed rule and invited 
public comment.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this final rule is exempt from notice and comment 
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory 
flexibility analysis requirements set forth at sections 603 and 604 of 
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, 
consistent with section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 605(b)), the Department certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This final rule regulates individual aliens who seek immigrant visas 
and does not affect any small entities, as defined in 5 U.S.C. 601(6).

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires 
agencies to prepare a statement before proposing any rule that may 
result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private sector. This rule would 
not result in any such expenditure, nor would it significantly or 
uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule would not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign based companies in domestic and 
export markets.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' within the scope of section 3(f)(1) 
of Executive Order 12866. Nonetheless, the Department has reviewed the 
rule to ensure its consistency with the regulatory philosophy and 
principles set forth in the Executive Order.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulations in light of sections 
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 
Chapter 35. The Department plans for applicants for visas for children 
adopted under the Hague Convention to use visa application forms that 
have already been approved by OMB. The forms related to the petition 
process, such as the I-800 and I-800A, are DHS forms, and DHS would be 
responsible for compliance with the PRA, where it applies, with respect 
to those forms. We currently anticipate that the certificates to be 
issued by consular officers will not involve the collection of 
additional information not already collected. Moreover, section 503(c) 
of the IAA exempts from the PRA any information collection ``for use as 
a Convention record as defined'' in the IAA. Information collected on 
Convention adoptions in connection with the visa, petition, and 
certificate processes would relate directly to specific Convention 
adoptions (whether final or not), and therefore would fall within this 
exemption. Accordingly, the Department has concluded that this 
regulation will not involve an ``information collection'' under the 
Paperwork Reduction Act.

List of Subjects in 22 CFR Part 42

    Immigration, Passports, Visas, Intercountry adoption, Convention 
certificates.

[[Page 61305]]

Visas: Documentation of Immigrants Under the Immigration and 
Nationality Act, as Amended

0
In view of the foregoing, 22 CFR part 42 is amended as follows:

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 42 is revised to read as follows:

    Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277; Pub. L. 108-
449; 112 Stat. 2681-795 through 2681-801; The Convention on 
Protection of Children and Co-operation in Respect of Intercountry 
Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 
(1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry 
Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 106-279.


0
2. Add Sec.  42.24 to Subpart C to read as follows:


Sec.  42.24  Adoption under the Hague Convention on Protection of 
Children and Co-operation in Respect of Intercountry Adoption and the 
Intercountry Adoption Act of 2000.

    (a) For purposes of this section, the definitions in 22 CFR 96.2 
apply.
    (b) On or after the Convention effective date, as defined in 22 CFR 
96.17, a child habitually resident in a Convention country who is 
adopted by a United States citizen deemed to be habitually resident in 
the United States in accordance with applicable DHS regulations must 
qualify for visa status under the provisions of INA section 
101(b)(1)(G) as provided in this section. Such a child shall not be 
accorded status under INA section 101(b)(1)(F), provided that a child 
may be accorded status under INA section 101(b)(1)(F) if Form I-600A or 
I-600 was filed before the Convention effective date. Although this 
part 42 generally applies to the issuance of immigrant visas, this 
section 42.24 may also provide the basis for issuance of a nonimmigrant 
visa to permit a Convention adoptee to travel to the United States for 
purposes of naturalization under INA section 322.
    (c) The provisions of this section govern the operations of 
consular officers in processing cases involving children for whom 
classification is sought under INA section 101(b)(1)(G), unless the 
Secretary of State has personally waived any requirement of the IAA or 
these regulations in a particular case in the interests of justice or 
to prevent grave physical harm to the child, to the extent consistent 
with the Convention.
    (d) An alien child shall be classifiable under INA section 
101(b)(1)(G) only if, before the child is adopted or legal custody for 
the purpose of adoption is granted, a petition for the child has been 
received and provisionally approved by a DHS officer or, where 
authorized by DHS, by a consular officer, and a visa application for 
the child has been received and annotated in accordance with paragraph 
(h) of this section by a consular officer. No alien child shall be 
issued a visa pursuant to INA section 101(b)(1)(G) unless the petition 
and visa application are finally approved.
    (e) If a petition for a child under INA section 101(b)(1)(G) is 
properly filed with a consular officer, the consular officer will 
review the petition for the purpose of determining whether it can be 
provisionally approved in accordance with applicable DHS requirements. 
If a properly completed application for waiver of inadmissibility is 
received by a consular officer at the same time that a petition for a 
child under INA section 101(b)(1)(G) is received, provisional approval 
cannot take place unless the waiver is approved, and therefore the 
consular officer, pursuant to 8 CFR 204.313(i)(3) and 8 CFR 212.7, will 
forward the petition and the waiver application to DHS for decisions as 
to approval of the waiver and provisional approval of the petition. If 
a petition for a child under INA section 101(b)(1)(G) is received by a 
DHS officer, the consular officer will conduct any reviews, 
determinations or investigations requested by DHS with regard to the 
petition and classification determination in accordance with applicable 
DHS procedures.
    (f) A petition shall be provisionally approved by the consular 
officer if, in accordance with applicable DHS requirements, it appears 
that the child will be classifiable under INA section 101(b)(1)(G) and 
that the proposed adoption or grant of legal custody will be in 
compliance with the Convention. If the consular officer knows or has 
reason to believe the petition is not provisionally approvable, the 
consular officer shall forward it to DHS pursuant to 8 CFR 
204.313(i)(3).
    (g) After a petition has been provisionally approved, a completed 
visa application form, any supporting documents required pursuant to 
Sec.  42.63 and Sec.  42.65, and any required fees must be submitted to 
the consular officer in accordance with Sec.  42.61 for a provisional 
review of visa eligibility. The requirements in Sec.  42.62, Sec.  
42.64, Sec.  42.66 and Sec.  42.67 shall also be satisfied to the 
extent practicable.
    (h) A consular officer shall provisionally determine visa 
eligibility based on a review of the visa application, submitted 
supporting documents, and the provisionally approved petition. In so 
doing, the consular officer shall follow all procedures required to 
adjudicate the visa to the extent possible in light of the degree of 
compliance with Sec. Sec.  42.62 through 42.67. If it appears, based on 
the available information, that the child would not be ineligible under 
INA section 212 or other applicable law to receive a visa, the consular 
officer shall so annotate the visa application. If evidence of an 
ineligibility is discovered during the review of the visa application, 
and the ineligibility was not waived in conjunction with provisional 
approval of the petition, the prospective adoptive parents shall be 
informed of the ineligibility and given an opportunity to establish 
that it will be overcome. If the visa application cannot be annotated 
as described above, the consular officer shall deny the visa in 
accordance with Sec.  42.81, regardless of whether the application has 
yet been executed in accordance with Sec.  42.67(a); provided however 
that, in cases in which a waiver may be available under the INA and the 
consular officer determines that the visa application appears otherwise 
approvable, the consular officer shall inform the prospective adoptive 
parents of the procedure for applying to DHS for a waiver. If in 
addition the consular officer comes to know or have reason to believe 
that the petition is not clearly approvable as provided in 8 CFR 
204.313(i)(3), the consular officer shall forward the petition to DHS 
pursuant to that section.
    (i) If the petition has been provisionally approved and the visa 
application has been annotated in accordance with subparagraph (h), the 
consular officer shall notify the country of origin that the steps 
required by Article 5 of the Convention have been taken.
    (j) After the consular officer has received appropriate 
notification from the country of origin that the adoption or grant of 
legal custody has occurred and any remaining requirements established 
by DHS or Sec. Sec.  42.61 through 42.67 have been fulfilled, the 
consular officer, if satisfied that the requirements of the IAA and the 
Convention have been met with respect to the adoption or grant of legal 
custody, shall affix to the adoption decree or grant of legal custody a 
certificate so indicating. This certificate shall constitute the 
certification required by IAA section 301(a) and INA section 204(d)(2). 
For purposes of determining whether to issue a certificate, the fact 
that a consular officer notified the country of origin pursuant to 
paragraph (i) of this

[[Page 61306]]

section that the steps required by Article 5 of the Convention had been 
taken and the fact that the country of origin has provided appropriate 
notification that the adoption or grant of legal custody has occurred 
shall together constitute prima facie evidence of compliance with the 
Convention and the IAA.
    (k) If the consular officer is unable to issue the certificate 
described in paragraph (j) of this section, the consular officer shall 
notify the country of origin of the consular officer's decision.
    (l) After the consular officer determines whether to issue the 
certificate described in paragraph (j) of this section, the consular 
officer shall finally adjudicate the petition and visa application in 
accordance with standard procedures.
    (m) If the consular officer is unable to give final approval to the 
visa application or the petition, then the consular officer shall 
forward the petition to DHS, pursuant to Sec.  42.43 or 8 CFR 
204.313(i)(3), as applicable, for appropriate action in accordance with 
applicable DHS procedures, and/or refuse the visa application in 
accordance with Sec.  42.81. The consular officer shall notify the 
country of origin that the visa has been refused.

    Dated: October 22, 2007.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
 [FR Doc. E7-21340 Filed 10-29-07; 8:45 am]
BILLING CODE 4710-06-P