Orphan Visas Problems - What could happen?

By Harden Jackson, LLC on April 5, 2013
 

Are you considering international adoption? Have you adopted internationally in the past? If so, you may be well aware of some of the problems listed below when filing for your Orphan Visa. Sometimes, this can be a very disheartening process for intended parents as this is one of the final steps before bringing the child home.

You have your foreign Decree for your International adoption and you now have filed your I-600 - Application for Orphan Visa (I-R3 and I-R4). This is for all Non-Hague countries Orphan Visas; however, if you are adopting from a Hague Country the process is similar but does have some differences, specifically the reasons for problems in the Hague Orphan Visa process. For general information about the I-600/I-600A process, please see U.S. Citizenship and Immigration Services
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Over the past ten years in international adoption and most specifically in the past 4 years, we have seen higher scrutiny given to the examination of the Orphan Visa applications. I believe the increased scrutiny is a result of the following:
1. Corruption in the international adoption process;
2. U.S. State Departments desire to streamline international adoptions into Hague and agency only adoptions to avoid corruption; and
3. Overall political shirt to scrutinizing immigration and therefore, increased desire to limit immigration into the U.S.

There are two ways in which you may file your I-600: Filing in the U.S. at the National Benefits' Center - NBC - (Department of Homeland Security/United State's Citizenship and Immigration Services) or in country (this may be at USCIS foreign office within an Embassy or with a U.S. State Department officer who are also given authority to review I-600 applications). The following will be the results of your filing:
1. Approval (if received by NBC) this is still only a pre-approval.
2. Request for Additional Evidence (RFE) - This means that the officer reviewing your application wants additional information to be able to make a determination. This can be used for various reasons and often does not mean that there are any problems in your case, but merely a desire for additional documents.
3. Notice of Intent to Deny (NOID) - This means that the officer reviewing your case did not deny your case but intends to do so. The NOID will give you time to respond and provide information so that the officer will not Deny. You will be given reasons in which the officer feels that a Denial is appropriate and therefore, you can respond accordingly. The intended parents or an attorney they retain can provide the response to a NOID.
4. Notice of Intend to Revoke (NOIR) - This is often used with the NBC already provided an approval and when documents were reviewed and the investigation was performed in the foreign country, the reviewing officer in the country determined that a Visa could not be issued and therefore, gave intended parents a Notice that they intend to revoke the approval for an Orphan Visa.
5. Orphan Visa Denial - Upon review of the I-600 and accompanying documents and the 604 Investigation in country (and potentially additional documents provided after a RFE, NOID, NOIR), the intended parents receive a denial. Denials can be appealed; however, the appeal decision is full and final with no additional options or remedies for the intended parents (however, other immigration options may be available, so please seek the advice of an attorney). All appeals are completed at USCIS Office of Appeals in Washington, D.C.
The following reasons I have observed as the most common for RFE, NOID, NOIRs and Denials:
1. Petitioners (intended adoptive parents) do not meet financial guidelines. A Petitioner may have received an initial approval of their I-600A Advanced Processing of the Orphan Visa; however, finances may have changed or ways in which finances were reported changed and therefore, the Petitioners are not deemed to qualify upon the filing of their I-600. Often a Petitioner can include a co-sponsor for the child and then qualify (co-sponsors can be anyone that agrees to be financially responsible for the child until the adoption in the U.S. is fully recognized and child becomes a U.S. citizen).
2. Child does not qualify as an orphan. This is the most disheartening problem as often the child' qualified per the foreign laws BUT do not qualify per U.S. immigration laws and therefore, the parents that have completed the entire adoption cannot obtain permission for the child to immigrate into the U.S. This problem has increased with the increase of independent international adoptions and higher scrutiny of the orphan visa. U.S. has very complicated and specific laws on the qualifications of an orphan. The mere reading of the qualifications will likely not be sufficient for a determination for most parents as there is additional case law that accompanies the interpretation of the laws as well.
3. Information in documentation is not consistent (dates/names/descriptions).
4. Adoption process was not done properly. This could include anything from corruption to using the wrong judicial system.

What can you do? Most importantly, if you are adopting internationally, you should always work with a licensed adoption agency or an experienced adoption attorney. These professionals can assist you with the entire process and hopefully can prepare you for issues or even help prevent issues in bringing your child home.

Do you have questions about international adoption or help with orphan visa appeals? Contact Michele Jackson at Harden Jackson Law. Our Adoption Practice Group can assist clients in a number of domestic and international matters.