INS on New Orphan Petition Regulations

A final rule was published in the Federal Register on August 1, 1994, at 59 FR 38876-38889, amending the provisions of 8 CFR 204 that govern the adjudication of advanced processing applications and orphan petitions. The new rule will be effective on September 30, 1994.

Applications and petitions filed before September 30, 1994, will be adjudicated under the prior regulations (See 8 CFR 204.3(h)). Advance processing applications filed before September 30, 1994, and approved under the prior regulations will continue to be valid for only 12 months from the date of approval. Those filed on or after September 30, 1994, and approved under the new regulations will be valid for 18 months.

The final rule also exempts home studies submitted to the Service before December 30, 1994, from compliance with the new home study requirements, except for requirements relating to screening for abuse and violence and to information concerning history of abuse and/or violence (See 8 CFR 204.3(e) (10)).

A summary of significant provisions of the final rule is included. Please refer to the attached copy of the final rule for detailed information.

The final rule includes:

(1) the addition of several of definitions, including definitions of "abandonment," "sole parent," and "surviving parent" (8 CFR 204.3(b));

(2) a clarification that a child cannot be considered as having a sole parent if the child was born in a country that makes no distinction between a child born in or out of wedlock (8 CFR 204.3(b));

(3) a listing of required supporting documentation that must accompany a properly filed advanced processing application, including a new requirement that two sets of fingerprint cards be submitted for each additional adult member of the prospective adoptive parent's household (8 CFR 204.3(c)(1));

(4) a requirement that the home study be submitted within one year of filing the advanced processing application (8 CFR 204.3(c)(2));

(5) a new requirement that the orphan petition and all supporting documents be filed within 18 months of the date the advanced processing application was approved, which extends the validity of the advance processing application to 18 months from date of approval (8 CFR 204.3(d));

(6) a new requirement that the orphan petition be accompanied either by evidence of adoption abroad or by evidence that the prospective adoptive parents have, or a person or entity working on their behalf has, custody of the orphan for emigration and adoption in accordance with the laws of the foreign-sending country (8 CFR 204.3(d)(1)(iv));

(7) the addition of several new home study requirements, including requirements that the home study (8 CFR 204.3(e)):

a) address any additional adult members of the prospective adoptive parents' household;

b) not be more than six months old or have been updated within six months prior to its submission to the service. Each update must include screening for abuse and violence;

c) meet any State, professional or agency requirements;

d) specify the number of interviews, visits, and other contacts with adult household members, show that at least one interview was conducted in person with each adult member of the household, and show that the home was personally visited at least once;

e) assess the physical, mental, and emotional capability of the prospective adoptive parents to properly parent the orphan, and apply these requirements to any additional adult household members. It must also include the preparer's assessment of any potential problems areas ans specifically recommended restrictions, if any, on the characteristics of the child to be placed in the home;

f) asses the finances of the prospective adoptive parents;

g) include the results of checks with available child abuse registry checks conducted on each adult household member, note that such information will not be released by the State, or note that the State does not have a child abuse registry;