The National Council For Adoption (NCFA) submits these comments to the US Department of State on the proposed regulation RIN 1400-AC17, which addresses consular officer procedures in “Hague adoption” cases.  NCFA is a national adoption research, education, and advocacy nonprofit whose mission is to promote the well-being of children, birthparents, and adoptive families by advocating for the positive option of adoption.  NCFA’s Presidents William Pierce and Thomas Atwood have been participants in the Special Commission on the Practical Operation of the 1993 Hague Intercountry Adoption Conference, convened by the Hague Conference on Private International Law in the Netherlands.  NCFA has been a key adoption policymaker involved with the ten-year effort that led to the Intercountry Adoption Act of 2000 (IAA) and submitted comments to the “Part 96” Hague regulations in December, 2003.

NCFA supports the goal of the proposed regulation that allows for a provisional approval of a prospective adoption of an orphan by an early assessment process regarding the child’s eligibility to be adopted, prior to the official approval being provided by the sending country.  This is consistent with Article 5 of the Hague Convention, and it is logical to assume that once an adoption is approved that a child will be able to enter the United States with his adoptive parents. It is far better for all the parties to a potential adoption to determine early in the process whether there is likely to be a problem with a child’s orphan status.

NCFA recommends that the final rule contain greater clarity regarding the following issues: 

1) How early in the process should the consular officer make the decision about provisional approval and visa eligibility and what specifically should guide the officer regarding the sufficiency of information to make this determination?  The preamble of the proposed rule states that US authorities will perform the bulk of the petition and visa adjudication work much earlier than under current practice by having consular officers make provisional approval and eligibility decisions.  The language provides for the need of officers to review and request documentation that is pertinent to making a provisional decision, but notes that some relevant information may not be available at the provisional stage.  The ambiguous nature of a “provisional” approval presents unusual challenges.  On the one hand, officers may be inclined to be easier in granting a questionable approval, knowing that the provisional decision is not final.  On the other hand, there may be a tendency for the final determination to become a “rubber stamp,” given the precedent of the provisional approval.  NCFA suggests that there be in the final rule more clarity as to the timing of the provisional reviews and decisions and that there be guidelines regarding the quality and type of information required to make these determinations.  The State Department’s training and education of consular officers will also be important to making this policy work effectively.

2) How will the application for petition approval and visa eligibility occur?  It is unclear to NCFA how the actual provisional processes will occur.  Section 42.24(e) states, in part: “If a petition for a child under INA section 101(b)(1)(G) is received by a consular officer….”  Practically speaking, how will this work?  At what point should the applications be made?  It would be useful to have additional detail about the mechanics of the provisional review processes. 

3) What appeal process will be available to prospective adoptive parents who are notified that the child is likely to be ineligible to be issued a visa?  Section 42.24(h), which addresses visa eligibility determinations, states that in the case of a decision that a child will likely be ineligible to obtain a visa, the prospective adoptive parents “…shall be informed of the ineligibility and given an opportunity to establish that it will be overcome….”  The language does not address what constitutes “an opportunity to establish.”  It is NCFA’s view that the final regulation should, as a matter of due process, address in greater detail the process available to these parents.  An explicit procedure will also encourage consular officer decision-making accountability.

Respectfully submitted

July 24, 2006
Thomas C. Atwood
President and CEO
National Council For Adoption