DOS Cable on Adoptions via B-2 in Lieu of IR-3/4
Priority HQINS WashDC
AFSI
VISAS
E.O. 12598: N/A
TAGS: CVIS, KOCI
Subject: International Adoption via B2 in Lieu of IR3/4
1. Summary: VO wishes to bring to the attention of Consular Officers a recurring problem for the Department and INS: orphans who have entered in nonimmigrant status to be adopted by American citizens. The issuance of such an NIV violates immigration law, does not accomplish the intended goal, since the orphan cannot adjust status under INS regulations, and circumvents safeguard designed for the orphans’ protection. Posts are urged to contact VO with any questions. End Summary
2. The Visa Office has received reports from various stateside INS-offices of orphans who have entered the United States as nonimmigrants and whose status adopting parents are attempting to adjust to that of a legal immigrant in the IR3/4 category.
3. VO’s intention in the ALDAC is to make it clear that the issuance of an NIV to an orphan to effect a child’s immigration violates the law, places the child in an untenable immigration predicament, and circumvents the scrutiny intended to protect the orphan and the adoptive parents. VO urges officers to share this information with prospective adopting parents or agencies who inquire about such a visa.
214B STILL APPLIES
4. Posts are most likely to be approached to issue a B2 or F1 for an orphan for whom immediate issuance of an IV is not possible. For both categories, an intent to return to a residence abroad is a criterion in determining eligibility. Orphans who will be traveling to the United States in order to complete their adoptions and reside with their US resident parents obviously do not meet this criterion. Likewise, orphans who seek F1 visas in order to fulfill the two year cohabitation requirement of 101(B)(1)(E) cannot be issued visas.
5. More difficult are cases of orphans traveling for exchange or medical reasons. It is the officer’s job to determine the intent of the sponsors of such travel. Only when the officer is convinced that the child will be brought back can a visa be issued. The very admirable aim to provide advanced medical care for orphans has been used to pressure officers into issuing visas. Every year, there is at least one major case of orphans who are brought to the United States for medical treatment and then stay on as the wards of American citizens families. In most cases, the intent to adopt predated the issuance of the NIV.
6. Of course, intent is paramount. The adopted child of an AMCIT NGO worker who is resident overseas may be properly issued a B2 to accompany his family to the United States for a visit or home leave. Likewise, an orphan traveling through the sponsorship of a legitimate service organization may be properly issued a NIV to receive medical treatment. As with an NIV, it is the intent to return and not the intended length of stay which determines eligibility. Twelve months with missionary parents on home leave or 18 months of rehabilitation would not automatically make the child ineligible.
IT DOES NOT WORK
7. A practical argument against such an issuance is that it is does not work. Since August 1994, INS regulations (8 CFR 204.3(k)(3) prohibit the approval of a petition (I-600) for a child who is in the US illegally or in nonimmigrant status.
8. This means that a child brought to the US on B2 or F1 will fall out of status and stay out of status. While INS is unlikely to deport a minor child, the child is subject to a variety of problems - for example, many state social services will not approve the adoption of a child with no immigrant status. When these children reach majority, they are subject to involuntary return.
JUST WHO IS ADOPTING?
9. Finally, an orphan entering in nonimmigrant status evades all the scrutiny built into the immigration process. In the case of an IR-3/4, the adopting parents must first submit a detailed homestudy documenting not only financial resources but also the suitability of the parents and the home to receive an adopted child. In adoption, a fingerprint check is done against files of known molesters and abusers. In the IV processing, the required I-604 investigation establishes the child'’ eligibility as an orphan by verifying the adoption or custody and deters a great deal of child stealing and trafficking. By the same token, the process ensures that adoptive parents have as much information as possible about their child (e.g., any medical disabilities). No Consular Officer should knowingly allow these safeguards to be circumvented.
BILATERAL REPERCUSSIONS
10. In the past, NIV’s have sometimes been sought with a view to evading the adoption procedures or requirements of foreign countries. In some situations this practice has strained bi-lateral relations and led to Anti-American sentiment and media coverage.
11. Posts are encouraged to contact VO with any questions concerning this issue.
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