Many immigrants have indicated their desire to adopt either a child who is a relative or an orphan. If the adoptee is a relative, immigration law requires two years of legal and physical custody by adoptive parent before an immigrant visa can be issued to the child. Prospective adoptive parents who are not able to meet the two years physical presence requirement may want to consider adopting a child under the inter-country adoption program.
Both the Philippines and the United States are signatories to the May 29, 1993, Hague Adoption Convention on the Protection of Children and Co-operation in Respect to Inter-Country Adoption.
The United States Department of State and the Philippines Inter-Country Adoption Board (ICAB) serve as central authorities for inter-country adoptions under the Hague convention. The convention came into force in 2008.
Different rules apply
Prior to 2008, identification and adoption of the orphan child were the first steps toward obtaining an immigrant visa for the abandoned child.
With the Hague adoption Convention, the rules changed. Adopting the child or obtaining legal custody is now the last—not the first—step.
The Department of State emphasizes that the convention procedures “front load” the immigration process: The eligibility of the child or that of the adoptive parent must be determined first before an immigrant visa is issued and an adoption petition is filed. This can only be done through a Hague-accredited agency.
If for any reason the adoption was done prior to filing of the immigration petition, the adoption must be rescinded and the petitioning parent must begin the process of inter-country adoption again.
Orphan adoptions prior to 2008 are not covered by the Hague Adoption Convention and are not to be rescinded.
Except adoption by relatives, the adoptive parent may not initially choose the child to be adopted and there is a strict prohibition not to contact the child.
Prospective adoptive parents should be warned not to go directly to ICAB-Philippines.
Neither should the prospective parent contact an orphanage or adoption agency in the Philippines.
The new process
The sequence of steps to be taken is critical in the adoption and immigration process.
A prospective adoptive parent should first contact a Hague-accredited agency in the United States, which is also a recognized agency of ICAB-Philippines. The prospective adoptive parent from this recognized agency must obtain a home study report. Thereafter an application form (USCIS Form I-800A) should be filed with the USCIS Chicago
Lockbox address.
As soon as the I-800A form is approved, a copy of the approval notice will be sent to the ICAB which will then refer an eligible child for adoption.
The prospective parent will decide from there whether to accept the child. If the prospective parent accepts the ICAB referral, another form needs to be filed.
If approved, the US Consular officer will notify the ICAB
(Article 5 Letter) that the prospective adoptive parent may proceed to obtain an adoption or custody decree. As soon as this letter is released, ICAB will issue a temporary legal custody document.
This legal custody document and all other supporting documents will be the basis for the issuance of an immigrant visa for the adopted child. The adoption can then be completed in the US.
In 2011, the US Department of State reported that there were 9,300 immigrant visas issued to children adopted by US citizen parents. Of these numbers, 2,700 were processed under the Hague Convention. Only 230 adopted children from the Philippines were issued visas compared to 2,589 from China and 1,727 from Ethiopia.
There are a significant number of Filipino-American prospective parents. The seemingly complex process is usually what bars them from initiating the process. The complexity of the process may be softened by being aware of the “front loaded” process under the Hague Adoption Convention.
(Tancinco may be reached at law@tancinco.com or at 721 1963 or 887 7177)