August 26, 2021
As of August 26, 2021, the Department of State is withdrawing the guidance issued in March and May of 2018 and December of 2019 regarding two types of “soft referrals.” The guidance related to the practice of an adoption service provider referring a child to a family before confirmation of the child’s eligibility to be adopted through the intercountry process, or before approval of the prospective adoptive parents’ suitability to adopt based on a home study and associated background checks in a manner that would prevent the central or competent authority for the child's country of origin from referring the child to other prospective adoptive parents.
The United States Court of Appeals for the District of Columbia Circuit, in a decision dated July 9, 2021, determined that the Department’s referenced guidance on soft referrals was a legislative rule and required notice and comment rulemaking. Pending a final order to vacate the guidance, the Department is withdrawing the referenced guidance and has advised the Department-designated accrediting entity, Intercountry Adoption Accreditation and Maintenance Entity (IAAME), of the withdrawal.
Adoption service providers should be aware that foreign central and competent authorities may have specific requirements or restrictions regarding when a child may be referred, or on what constitutes a permissible referral, particularly with regard to a child not yet found eligible for adoption.