Comments on Proposed Regulations regarding "Consular Officer Procedures in Convention Cases" (RIN 1400-AC17)

 Introduction

The members of Joint Council on International Children’s Services (JCICS) have had an opportunity to review the proposed rules.  We understand that this proposed rule shifts the timing of the adjudication process much earlier than under current practice since the U.S. authorities must determine if the child is eligible to enter and reside permanently in the receiving state prior to the adoption or grant of custody, in compliance with Article 5 of the Convention.

It has been difficult to fully understand how this proposed rule will function when we have not seen the companion DHS regulations yet to be published.  Part 42 does not offer specifics in how this change will be implemented; therefore the majority of our comments are seeking additional clarification.  It is our hope that the Department will elaborate on the operational component of these rules when they are issued as final or re-issued as proposed, and take into consideration the comments made herein. 

JCICS is one of the oldest and largest associations of licensed, non-profit international adoption agencies, child advocacy groups, parent support groups and medical clinics in the world.  Our mission is to advocate on behalf of children in need of permanent families and promote ethical practices in intercountry adoption.  Collectively our members, over 235 organizations, serve approximately 80% of all international adoptions annually in the United States.  We thank the Department of State for the opportunity to comment on this proposed rule.   

     Part 42 – Visas: Documentation of Immigrants Under the Immigration and Nationality Act, as Amended

Limited Comment Period
This rule had a 30 day comment period, as opposed to the 60 day comment period the other Hague regulations have been granted.  Considering the importance of this regulation and the changes it introduces, it would have been beneficial to allow the adoption community more time to comment on the provisions.

42.24 (d) “An alien child shall only be classifiable under INA section 101(b)(1)(G) if, before the child is adopted or legal custody for the purpose of adoption is granted,
     (1) 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
     (2) a visa application for the child has been received and annotated in accordance with paragraph (h) of this section by a consular officer….”

Pertaining to the provisionally approved petition:

1.Who completes and submits the petition to the consular officer – the prospective adoptive parent(s) or the adoption service provider?  The submission of the petition occurs prior to the prospective adoptive parent(s) traveling to the child’s country of origin, correct?

2. What documentation, if any, will be required to be submitted as supporting documents to the petition? 
Currently, in many instances, the formal documents reflecting the child’s legal status that are used to obtain a child’s US visa are provided/created during the process of adopting the child or gaining legal guardianship of the child.  If a provisional review is required prior to the process of adopting or gaining legal guardianship of the child, will the available “referral” documents suffice as supporting documents for the provisional review?

3. Will there be a time frame for the provisional review? 

4. Are agencies able to petition for provisional approval on the child’s behalf without a prospective adoptive parent(s) identified? 
For example, “Waiting Children” – children who have been referred to an agency by a State Authority or supervised foreign provider for purposes of recruiting an adoptive family – can the representing adoption service provider petition on the child’s behalf to help expedite the process once an adoptive family is identified?

5. Must the provisional approval be completed by a consular officer in the foreign country or in some cases may the process occur at the local USCIS office? 
In cases, such as adoptions from India where the child’s court documents are reviewed and approved at the local USCIS office and then cabled to the appropriate US Consulate, will the provisional review/approval occur in the US at the local USCIS office?

42.24 (f) – Should the sixth word from end be “forward” instead of “return” since DHS may not have seen the petition previously?

42.24(g) “After a petition has been provisionally approved, a completed visa application form, any supporting documents required pursuant to 42.63 and 42.65, and any required fees must be submitted to the consular officer in accordance with 42.61 for a provisional review of visa eligibility….”

1. Can the adoption service provider file the completed visa application form, supporting documents, and pay the necessary fees before prospective adoptive parent(s) travel?
2. Regarding the specific documents required in each country of origin - how will this information be transmitted and to whom?

42.24(i)
This provision states that the consular officer is to notify the country of origin that Convention Article 5 steps have been taken.  The comment to this provision states: “The Department intends that, in general, such notification will be transmitted through the relevant adoption service provider.” 

Concern # 1: There may be cases where there is no adoption service provider and instead it is the prospective adoptive parent(s) that directly takes the steps required.  Would the notification then be transmitted through the prospective adoptive parent(s)?

Concern # 2: Given the importance of this notification, and the likelihood that if this notification was not transmitted correctly or in a timely fashion the adoption would be in jeopardy, we wonder why the consular officer, as a branch of the U.S. Central Authority, would not send the notification to the country of origin’s central authority directly?  This appears to be a task to be conducted between the Central Authorities.  We would support sending the notification to the adoption service provider as well, but not making them solely responsible for the transmittal.  If, however, the transmittal responsibility stays with the adoption service provider how will the notification be received and sent – electronically, mail, hand delivered, etc.?

42.24 (j) After the consular officer has received appropriate notification from the country of origin that the adoption or grant of custody has occurred  . . . . .”  

1. Is this referring only to the receipt and review of the adoption documents for visa review or is a different type of notification required?  If this is referring only to the documentation rather than a notification, then we suggest to change the wording to “(j) After the consular officer has received appropriate documentation from the country of origin that the adoption or grant of custody has occurred  . . .”  

General Comments

Travel – It is unclear from the proposed regulations the timing of the various steps involved in intercountry adoption.  A significant concern in the adoption community it that these changes will lengthen the period of time the prospective adoptive parent(s) is required to stay in-country.  Adding another trip or an extra week or two to the length of time already spent in country will be financially burdensome for adoptive parents.  In addition, many parents will not be able to take that much time off of work, leave other children at home, etc.  This could make intercountry adoption inaccessible for some families.  We hope that this is a misinterpretation of the proposed rules and that the complementary DHS regulations, yet to be published, will resolve these concerns. 

ICPC - How will the provisional approval requirements affect the timing Interstate Compact (ICPC) approval?  Will ICPC approval be required prior to provisional approval or after provisional approval, but before the final visa approval occurs?