[Federal Register Volume 72, Number 209 (Tuesday, October 30, 2007)]
[Rules and Regulations]
[Pages 61301-61306]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21340]
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DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice 5976]
RIN 1400-AC40
Hague Convention on Intercountry Adoption; Intercountry Adoption
Act of 2000; Consular Officer Procedures in Convention Cases
AGENCY: Department of State.
ACTION: Final Rule.
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SUMMARY: This rule amends Department of State regulations to provide
for intercountry adoptions that will occur pursuant to the Hague
Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption (Convention) and the Intercountry Adoption Act of
2000 (IAA). This rule addresses consular officer processing of
immigration petitions, visas, and Convention certificates in cases of
children immigrating to the United States in connection with an
adoption covered by the Convention.
EFFECTIVE DATE: This rule is effective October 30, 2007. Information
about the date the Convention will enter into force is provided in 22
CFR 96.17.
FOR FURTHER INFORMATION CONTACT: Barbara J. Kennedy, Legislation and
Regulations Division, Visa Services, United States Department of State,
2401 E Street, NW., Room L-603, Washington, DC 20520-0106; telephone
202-663-1206 or e-mail KennedyBJ@state.gov.
SUPPLEMENTARY INFORMATION:
Background
The Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption (Convention) is a multilateral treaty
that provides a framework for the adoption of children habitually
resident in one country party to the Convention by persons habitually
resident in another country party to the Convention. It establishes
procedures to be followed in such adoption cases and imposes safeguards
to protect the best interests of the children at issue. It also
provides for recognition of adoptions that occur pursuant to the
Convention. In the United States, the implementing legislation for the
Hague Convention is the Intercountry Adoption Act of 2000 (IAA). To
implement the Convention, the IAA makes two significant changes to the
Immigration and Nationality Act (INA): (1) It creates a new definition
of ``child'' applicable in Convention adoption cases, found at INA
101(b)(1)(G), that roughly parallels the current definition of
``child'' in INA 101(b)(1)(F) with respect to an orphan, but that
applies only to children being adopted from Convention countries. (2)
It incorporates Hague procedures into the immigration process for
children covered by INA 101(b)(1)(G), most directly by precluding
approval of an immigration petition under this classification until the
Department has certified that the child was adopted (or legal custody
was granted for purposes of emigration and adoption) in accordance with
the Convention and the IAA. Separately, section 301 of the IAA requires
all Federal, State, and local domestic entities to recognize adoptions
or grants of legal custody that have been so certified by the
Department.
On October 4, 2007, the Department of Homeland Security (DHS)
published in the Federal Register at 72 FR 56832 an interim rule on
``Classification of aliens as children of United States citizens based
on intercountry adoptions under the Hague Convention'' (8 CFR parts
103, 204 and 213a) (``DHS Rule''). That rule governs the adjudication
of Forms I-800A (relating to the suitability of prospective adoptive
parents for intercountry adoption under the Convention) and Forms I-800
(relating to the classification of a Convention adoptee as the child of
the adoptive parent(s) for purposes of the immigration and nationality
laws of the United States). Additional regulations implement other
aspects of the Convention and the IAA, such as those on the
accreditation/approval of adoption service providers to perform
adoption services in cases covered by the Convention (22 CFR part 96),
the preservation of records (22 CFR part 98), and certificate issuance
with respect to United States court proceedings (22 CFR part 97).
Further background on the Convention and the IAA is provided in the
Preamble to the Final Rule on the Accreditation of Agencies and
Approval of Persons under the Intercountry Adoption Act of 2000,
Sections III and IV, 71 FR 8064-8066 (February 15, 2006).
Discussion of Comments on the Proposed Rule
This section provides a discussion of the comments received by the
Department of State on the proposed rule.
1. Comment: Commenters requested elaboration of the operational
component of this rule, including the mechanics of how the applications
for petition approval and visa eligibility will be submitted.
Specifically, who completes and submits the petition to the consular
officer and at what stage in the process? Also, will it be possible for
adoption service providers to submit petitions abroad, with required
documentation and fees, on behalf of prospective adoptive parents?
Response: Once the Form I-800A, Application for Determination of
Suitability to Adopt a Child from a Convention Country, has been
approved, a Form I-800, Petition to Classify Convention Adoptee as
Immediate Relative, may be submitted either to DHS or to the consular
officer, as under the current procedure in immigration cases involving
orphan adoption. The DHS Rule, at 8 CFR 204.308, indicates that the
proper filing location for Form I-800A and Form I-800 will be specified
on the instructions for each form. The Supplementary Information, at 72
FR 56841-42, states that DHS anticipates that the filing process for
Convention cases will be
[[Page 61302]]
similar to the process for orphan cases. The Form I-800A will always be
filed in the United States with U.S. Citizenship and Immigration
Services (USCIS). The Form I-800 may also be filed with USCIS, either
at a Stateside office, or abroad, if the prospective adoptive parent(s)
live abroad and USCIS has an office in the country in which they live.
They may file the Form I-800 with a visa-issuing post if (a) they are
physically present within the territory of the visa-issuing post when
they file the Form I-800, and (b) either there is no USCIS office in
that country or that USCIS office in country has delegated its
authority to accept the filing of Forms I-800 to the visa-issuing post.
The DHS Rule has no provision for the filing of the petition abroad
when the prospective adoptive parents are physically present in the
United States. As soon as the Form I-800 has been provisionally
approved, however, the Form I-800 would generally be forwarded to the
visa-issuing post for final approval once the adoption is completed. 8
CFR 204.313(g)(2).
As for the visa application, there are no absolute requirements for
appearance at a consular post and the signing of the application until
the visa interview, which would generally not be practicable until
after the adoption has occurred. The unsigned visa application, with
supporting documents and fees, may be filed with a consular officer by
an adoption service provider, on behalf of prospective adoptive
parents, if not present, so that the application may be initially
reviewed.
2. Comment: One commenter requested further elaboration of the
provisional approval process, especially regarding when the provisional
approval will occur and what information will be required for the
provisional approval determination.
Response: The DHS Rule explains much of this process. The basic
steps in the provisional approval process are summarized as follows.
Pursuant to the DHS Rule, the prospective adoptive parent(s) file
Form 1-800A with the United States Citizenship and Immigration Service
(USCIS), together with a home study (prepared in accordance with 8 CFR
204.311 by someone authorized under 22 CFR Part 96 and 8 CFR 204.301 to
complete home studies for Convention cases), and other evidence as
described in new 8 CFR 204.310.
If USCIS approves the Form I-800A, the prospective adoptive
parent(s) may arrange for the submission of the approval notice, the
home study and other supporting evidence to the Central Authority of
the Convention Country in which they hope to adopt a child. 8 CFR
204.312(d)(2). The Central Authority must receive the same home study
as was submitted to USCIS.
Once the prospective adoptive parent(s) have received a report and
any other information on a child from the relevant Central Authority
and have decided to accept the referral, they would file Form I-800,
with the report and other evidence specified in new 8 CFR 204.313, with
the USCIS office or visa-issuing post specified in the Form I-800
instructions. This step must occur before the prospective adoptive
parent(s) have adopted or obtained legal custody of the child.
At this point, a USCIS officer or, if the Form I-800 is properly
filed with a visa-issuing post, a consular officer will provisionally
adjudicate the Form I-800. (If the prospective adoptive parent(s) filed
an application for waiver of any known or suspected ground of
inadmissibility at the same time they filed the Form I-800 at a
consular office, the consular officer will forward both the Form I-800
and the waiver application to the appropriate USCIS office for decision
as to approval of the waiver and provisional approval of the Form I-
800.)
If provisional approval of the I-800 petition is granted, the
prospective adoptive parent(s) may then file a visa application for the
child with the visa issuing post with jurisdiction over the child's
country of residence. Section 42.24(g) sets forth the documentary
requirements for the visa application, and states which requirements
may be satisfied to the extent practicable. This may vary from case to
case. In requiring some evidence only to the extent practicable, the
rule recognizes that some evidence may not be obtainable at this early
stage. However, in order to obtain as accurate an assessment of the
case as possible at the initial review stage, it is important that
supporting documents not be omitted unless obtaining them is truly not
practicable under the circumstances of the particular case.
If, after reviewing the information provided, it appears to the
consular officer that the child would not be ineligible, based on the
information provided, to receive an immigrant visa, the officer will
annotate the visa application to reflect this conclusion. See section
42.24(h).
If a USCIS officer or a consular officer has provisionally approved
the I-800 petition and a consular officer has annotated the visa
application, the consular officer is to notify the relevant Central
Authority that the steps required by Article 5 of the Convention have
been taken. (Article 5 of the Convention requires the receiving country
to have: (a) Determined that the prospective adoptive parent(s) are
eligible and suited to adopt; (b) ensured that the prospective adoptive
parent(s) have been counseled as may be necessary; and (c) determined
that the child is or will be authorized to enter and reside permanently
in the receiving country.) The prospective adoptive parent(s) may then
either complete the adoption in the Convention country or else obtain
legal custody for the purpose of adoption.
After receiving appropriate notification from the Convention
country that the adoption has occurred or, in custody for purpose of
adoption cases, that legal custody has been granted, including a copy
of the adoption or custody order, the consular officer will verify
Convention and IAA compliance before affixing a certification to that
effect to the adoption order. In verifying compliance, the consular
officer must consider U.S. prior notification under Article 5 plus
appropriate notification from the country of origin as prima facie
evidence of compliance with the Convention and the IAA. In other words,
the prior determination plus appropriate notification of the adoption
or grant of legal custody is sufficient to establish compliance, so
long as the consular officer does not have a well-founded and
substantive reason to believe that the adoption or the grant of legal
custody was non-compliant with the Convention or the IAA. At that
point, the consular officer will finally adjudicate the Form I-800 and
the visa application. If, however, the consular officer determines that
the Form I-800 is not approvable, the consular officer will refer the
case to USCIS for review and decision. The Department does not
anticipate that this situation will arise often, if at all, because of
the procedural safeguards inherent in the Convention adoption process.
3. Comment: One commenter asked what ``appeal process'' would be
provided for prospective adoptive parents if, pursuant to section
42.24(h), they were informed of an ineligibility.
Response: Under the DHS Rule, prospective adoptive parents may file
a waiver application for any inadmissibilities when the I-800 petition
is filed. See 8 CFR 204.313(d)(5). After provisional approval of the
petition, if an ineligibility is found that has not been overcome by a
waiver submitted at the provisional approval stage, the visa
application will be denied and prospective adoptive parents will be
advised whether a waiver is available
[[Page 61303]]
and, if so, how to apply for it. As in any other immigrant visa case,
an applicant will have an opportunity to present any additional
evidence that may overcome the grounds of ineligibility, and to submit
an application for a waiver if the visa is refused because of an
ineligibility for which a waiver is available. See 22 CFR 42.81 and 8
CFR 212.7.
If USCIS denies a Form I-800A or a Form I-800, the prospective
adoptive parents may appeal the denial, as specified in 8 CFR 204.314.
The traditional legal doctrine of non-reviewability of a decision to
deny a visa application, however, applies to Convention adoption cases
to the same extent as any other visa application case.
4. Comment: One commenter asked whether there would be a time frame
for provisional review.
Response: The DHS rule, which governs the provisional approval
process, does not include a time frame for provisional review. This
rule also does not include a time frame for the initial review of the
visa application.
5. Comment: One commenter asked whether an agency could petition
for provisional approval on a child's behalf before a prospective
adoptive parent is identified.
Response: No. The Form I-800A for prospective adoptive parent(s)
must be approved before a Form I-800 petition can be submitted on
behalf of a particular child. However, an adoption service provider
could gather the relevant documents in advance so as to expedite the
submission of the I-800 petition once prospective adoptive parent(s)
are identified.
6. Comment: One commenter asked whether the provisional approval of
the I-800 petition had to take place in the country of origin or
whether, in some cases, it could take place at the local USCIS office.
Response: The office with which the prospective adoptive parent(s)
file the Form I-800 petition will vary. See DHS Rule, 8 CFR 204.308. If
the Form I-800 is properly filed with a Stateside USCIS office, that
office will make the decision regarding provisional approval. If the
Form I-800 is properly filed abroad, the USCIS office or visa-issuing
post abroad will make this decision.
7. Comment: One commenter suggested that the sixth word from the
end of 42.24(f) be changed from ``return'' to ``forward,'' since in
some cases DHS may not have seen the petition previously.
Response: We have made the suggested change, and have also replaced
the reference to 22 CFR 42.43 with a reference to 8 CFR 204.313(i)(3),
which requires consular officers to forward any Form I-800 petition
that is not clearly approvable, along with accompanying evidence, to
USCIS.
8. Comment: One commenter asked about how information about the
specific documents required from each country of origin would be shared
with prospective adoptive parents and adoption service providers.
Response: As currently, the information required from the country
of origin will be available in the country-specific adoption flyer
which is available both on www.travel.state.gov and from the relevant
United States Consulate.
9. Comment: One commenter expressed concerns about the language in
the explanatory section of the proposed rule, noting that generally the
adoption service provider would be delivering the United States
Government's Article 5 notification. The commenter expressed a
preference that the consular officer directly notify the foreign
Central Authority. The commenter also requested details about the
acceptable methods of transmission.
Response: How the notification is transmitted to the country of
origin will vary depending on the practices and procedures set up by
the relevant consular post. This language was included to make clear
that, although the notification would be originated by the consular
officer, it could be delivered by adoption service providers. The
United States approach to implementation of the Convention, as set
forth in the IAA, has been to use certain adoption service providers to
perform some Central Authority functions, in accordance with 22 U.S.C.
part 96. (Convention Article 22 permits a Convention country to use
accredited bodies and approved persons to perform certain tasks in the
adoption process). Such providers are capable of transmitting this
notification securely and expeditiously, in a method that will depend
on the circumstances of the particular country.
10. Comment: One commenter asked for clarification of 42.24 (j),
specifically what type of notification was anticipated, and suggested
changing the term ``notification'' to ``documentation.''
Response: The type of notification that will satisfy section
42.24(j) may vary depending on the Central Authority of the relevant
country of origin. The United States expects to work diplomatically
with these Central Authorities to ensure that the necessary
notification is obtained. ``Notification'' is the term used here
because this language is drawn from the IAA, which refers to
``appropriate notification'' from the foreign Central Authority as a
prerequisite to certificate issuance.
11. Comment: One commenter asked how the rule would affect the
length and the number of any visits the prospective adoptive parents
take to the country of origin.
Response: Because both the I-800A and the I-800 may be filed
domestically, and the visa application may be filed without the
physical presence of the applicant if not practicable, the rule will
not necessarily impact the length or number of visits to the country of
origin.
12. Comment: One commenter asked how provisional approval would
affect the timing of the Interstate Compact (ICPC) approval.
Response: The DHS rule determines at what point in the process the
petitioner for the child must comply with any U.S. State's pre-adoption
requirements, including any State requirement to comply with ICPC. See,
e.g., 8 CFR 204.305 (State preadoption requirements); 8 CFR 204.310
(filing requirements for Form I-800A); 8 CFR 204.311 (Convention
adoption home study requirements); 8 CFR 204.313 (filing and
adjudication of a Form I-800).
Summary of the Final Regulation
This final rule establishes new procedures that consular officers
will follow in adjudicating cases of children whose cases are covered
by the Convention. When children habitually resident abroad in a
Convention country have been, are being, or will be moved in connection
with adoption by parents habitually resident in the United States, the
Convention applies. Although much of the petition and visa processes
will be similar to the current orphan case procedures, there are
important changes. Perhaps most significantly, United States
authorities will perform the bulk of petition and visa adjudication
work much earlier than under current practice. This early review will
enable United States authorities to make the determination required by
Article 5 of the Convention that the child will be eligible to enter
and reside permanently in the receiving state prior to the adoption or
grant of legal custody. The regulation also provides that, once the
country of origin has provided appropriate notification that the
adoption or grant of legal custody has occurred, including a copy of
the adoption or custody order, the consular officer will issue a
certificate to the United States adoptive or prospective adoptive
parent(s) if the officer is satisfied that the requirements of the
Convention and IAA have been met, and only if so will the consular
[[Page 61304]]
officer approve the immigration petition and complete visa processing.
To streamline the process, the regulation departs from current practice
by allowing consular officers to approve petitions for children whose
cases are covered by the Convention regardless of whether the petition
was originally filed with the Department or DHS.
The Department is issuing the rule as final with minor changes,
taking into account the comments received and the DHS Rule. In
particular, sections 42.24(f), (h) and (m) were slightly edited to
reflect the fact that a petition filed originally with a consular
officer would be ``forwarded,'' not ``returned,'' to DHS if the
consular officer concluded that it was not clearly approvable, and to
reflect the correct regulations. Section 42.24(d) was modified by the
deletion of a requirement that a consular officer approve the petition,
which would not have allowed for visa issuance in a case in which DHS
approved a provisionally-approved petition after the consular officer
had returned it as not clearly approvable. In addition, section
42.24(b) was changed to correspond more closely to the DHS rule with
respect to the scope of application of the Convention and the handling
of transition cases and cases involving a Convention adoptee who seeks
to travel to the United States as a nonimmigrant for purposes of
naturalization under INA section 322, as specified in 8 CFR
204.313(b)(2). Sections 42.24(e) and (h) were amended to clarify the
operations of waivers of ineligibility. Also, a cross-reference making
the definitions in 22 CFR 96.2 apply to 22 CFR 42.24 was added for
consistency with all other relevant rules. (The DHS Rule and the
Department of State rules for 22 CFR 96, 97, 98, 99 and now 22 CFR
42.24 use the same definitions for the same terms when those terms are
defined in 22 CFR 96.2.) Consequently, the defined terms ``Convention
country'' and ``legal custody'' were used in sections 42.24(b), (f),
and (j). In addition, section 42.24(j) was amended to clarify that the
country of origin's provision of appropriate notification, in addition
to the consular officer's notification pursuant to Article 5, is
required to establish prima facie evidence of compliance with the
Convention and the IAA. Finally, the Department further modified
section 42.24(h) to reflect the possibility that a visa ineligibility
identified by a consular officer during the initial review could be
either overcome or, after forwarding to DHS, waived.
Regulatory Findings
Administrative Procedure Act
In accordance with provisions of the Administrative Procedure Act
governing rules promulgated by federal agencies that affect the public
(5 U.S.C. 552), the Department published a proposed rule and invited
public comment.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Because this final rule is exempt from notice and comment
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory
flexibility analysis requirements set forth at sections 603 and 604 of
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless,
consistent with section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Department certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This final rule regulates individual aliens who seek immigrant visas
and does not affect any small entities, as defined in 5 U.S.C. 601(6).
The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may
result in an annual expenditure of $100 million or more by State,
local, or tribal governments, or by the private sector. This rule would
not result in any such expenditure, nor would it significantly or
uniquely affect small governments.
The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule would not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign based companies in domestic and
export markets.
Executive Order 12866
The Department of State does not consider this rule to be a
``significant regulatory action'' within the scope of section 3(f)(1)
of Executive Order 12866. Nonetheless, the Department has reviewed the
rule to ensure its consistency with the regulatory philosophy and
principles set forth in the Executive Order.
Executive Orders 12372 and 13132: Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Nor will the rule have federalism
implications warranting the application of Executive Orders No. 12372
and No. 13132.
Executive Order 12988: Civil Justice Reform
The Department has reviewed the regulations in light of sections
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C.
Chapter 35. The Department plans for applicants for visas for children
adopted under the Hague Convention to use visa application forms that
have already been approved by OMB. The forms related to the petition
process, such as the I-800 and I-800A, are DHS forms, and DHS would be
responsible for compliance with the PRA, where it applies, with respect
to those forms. We currently anticipate that the certificates to be
issued by consular officers will not involve the collection of
additional information not already collected. Moreover, section 503(c)
of the IAA exempts from the PRA any information collection ``for use as
a Convention record as defined'' in the IAA. Information collected on
Convention adoptions in connection with the visa, petition, and
certificate processes would relate directly to specific Convention
adoptions (whether final or not), and therefore would fall within this
exemption. Accordingly, the Department has concluded that this
regulation will not involve an ``information collection'' under the
Paperwork Reduction Act.
List of Subjects in 22 CFR Part 42
Immigration, Passports, Visas, Intercountry adoption, Convention
certificates.
[[Page 61305]]
Visas: Documentation of Immigrants Under the Immigration and
Nationality Act, as Amended
0
In view of the foregoing, 22 CFR part 42 is amended as follows:
PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 42 is revised to read as follows:
Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277; Pub. L. 108-
449; 112 Stat. 2681-795 through 2681-801; The Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51
(1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry
Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 106-279.
0
2. Add Sec. 42.24 to Subpart C to read as follows:
Sec. 42.24 Adoption under the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption and the
Intercountry Adoption Act of 2000.
(a) For purposes of this section, the definitions in 22 CFR 96.2
apply.
(b) On or after the Convention effective date, as defined in 22 CFR
96.17, a child habitually resident in a Convention country who is
adopted by a United States citizen deemed to be habitually resident in
the United States in accordance with applicable DHS regulations must
qualify for visa status under the provisions of INA section
101(b)(1)(G) as provided in this section. Such a child shall not be
accorded status under INA section 101(b)(1)(F), provided that a child
may be accorded status under INA section 101(b)(1)(F) if Form I-600A or
I-600 was filed before the Convention effective date. Although this
part 42 generally applies to the issuance of immigrant visas, this
section 42.24 may also provide the basis for issuance of a nonimmigrant
visa to permit a Convention adoptee to travel to the United States for
purposes of naturalization under INA section 322.
(c) The provisions of this section govern the operations of
consular officers in processing cases involving children for whom
classification is sought under INA section 101(b)(1)(G), unless the
Secretary of State has personally waived any requirement of the IAA or
these regulations in a particular case in the interests of justice or
to prevent grave physical harm to the child, to the extent consistent
with the Convention.
(d) An alien child shall be classifiable under INA section
101(b)(1)(G) only if, before the child is adopted or legal custody for
the purpose of adoption is granted, a petition for the child has been
received and provisionally approved by a DHS officer or, where
authorized by DHS, by a consular officer, and a visa application for
the child has been received and annotated in accordance with paragraph
(h) of this section by a consular officer. No alien child shall be
issued a visa pursuant to INA section 101(b)(1)(G) unless the petition
and visa application are finally approved.
(e) If a petition for a child under INA section 101(b)(1)(G) is
properly filed with a consular officer, the consular officer will
review the petition for the purpose of determining whether it can be
provisionally approved in accordance with applicable DHS requirements.
If a properly completed application for waiver of inadmissibility is
received by a consular officer at the same time that a petition for a
child under INA section 101(b)(1)(G) is received, provisional approval
cannot take place unless the waiver is approved, and therefore the
consular officer, pursuant to 8 CFR 204.313(i)(3) and 8 CFR 212.7, will
forward the petition and the waiver application to DHS for decisions as
to approval of the waiver and provisional approval of the petition. If
a petition for a child under INA section 101(b)(1)(G) is received by a
DHS officer, the consular officer will conduct any reviews,
determinations or investigations requested by DHS with regard to the
petition and classification determination in accordance with applicable
DHS procedures.
(f) A petition shall be provisionally approved by the consular
officer if, in accordance with applicable DHS requirements, it appears
that the child will be classifiable under INA section 101(b)(1)(G) and
that the proposed adoption or grant of legal custody will be in
compliance with the Convention. If the consular officer knows or has
reason to believe the petition is not provisionally approvable, the
consular officer shall forward it to DHS pursuant to 8 CFR
204.313(i)(3).
(g) After a petition has been provisionally approved, a completed
visa application form, any supporting documents required pursuant to
Sec. 42.63 and Sec. 42.65, and any required fees must be submitted to
the consular officer in accordance with Sec. 42.61 for a provisional
review of visa eligibility. The requirements in Sec. 42.62, Sec.
42.64, Sec. 42.66 and Sec. 42.67 shall also be satisfied to the
extent practicable.
(h) A consular officer shall provisionally determine visa
eligibility based on a review of the visa application, submitted
supporting documents, and the provisionally approved petition. In so
doing, the consular officer shall follow all procedures required to
adjudicate the visa to the extent possible in light of the degree of
compliance with Sec. Sec. 42.62 through 42.67. If it appears, based on
the available information, that the child would not be ineligible under
INA section 212 or other applicable law to receive a visa, the consular
officer shall so annotate the visa application. If evidence of an
ineligibility is discovered during the review of the visa application,
and the ineligibility was not waived in conjunction with provisional
approval of the petition, the prospective adoptive parents shall be
informed of the ineligibility and given an opportunity to establish
that it will be overcome. If the visa application cannot be annotated
as described above, the consular officer shall deny the visa in
accordance with Sec. 42.81, regardless of whether the application has
yet been executed in accordance with Sec. 42.67(a); provided however
that, in cases in which a waiver may be available under the INA and the
consular officer determines that the visa application appears otherwise
approvable, the consular officer shall inform the prospective adoptive
parents of the procedure for applying to DHS for a waiver. If in
addition the consular officer comes to know or have reason to believe
that the petition is not clearly approvable as provided in 8 CFR
204.313(i)(3), the consular officer shall forward the petition to DHS
pursuant to that section.
(i) If the petition has been provisionally approved and the visa
application has been annotated in accordance with subparagraph (h), the
consular officer shall notify the country of origin that the steps
required by Article 5 of the Convention have been taken.
(j) After the consular officer has received appropriate
notification from the country of origin that the adoption or grant of
legal custody has occurred and any remaining requirements established
by DHS or Sec. Sec. 42.61 through 42.67 have been fulfilled, the
consular officer, if satisfied that the requirements of the IAA and the
Convention have been met with respect to the adoption or grant of legal
custody, shall affix to the adoption decree or grant of legal custody a
certificate so indicating. This certificate shall constitute the
certification required by IAA section 301(a) and INA section 204(d)(2).
For purposes of determining whether to issue a certificate, the fact
that a consular officer notified the country of origin pursuant to
paragraph (i) of this
[[Page 61306]]
section that the steps required by Article 5 of the Convention had been
taken and the fact that the country of origin has provided appropriate
notification that the adoption or grant of legal custody has occurred
shall together constitute prima facie evidence of compliance with the
Convention and the IAA.
(k) If the consular officer is unable to issue the certificate
described in paragraph (j) of this section, the consular officer shall
notify the country of origin of the consular officer's decision.
(l) After the consular officer determines whether to issue the
certificate described in paragraph (j) of this section, the consular
officer shall finally adjudicate the petition and visa application in
accordance with standard procedures.
(m) If the consular officer is unable to give final approval to the
visa application or the petition, then the consular officer shall
forward the petition to DHS, pursuant to Sec. 42.43 or 8 CFR
204.313(i)(3), as applicable, for appropriate action in accordance with
applicable DHS procedures, and/or refuse the visa application in
accordance with Sec. 42.81. The consular officer shall notify the
country of origin that the visa has been refused.
Dated: October 22, 2007.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E7-21340 Filed 10-29-07; 8:45 am]
BILLING CODE 4710-06-P