Chapter 4 - Eligibility Requirements Specific to Convention Adoptees

To be eligible under the Convention process, the child must be habitually resident in a Convention country and meet the definition of a Convention adoptee.^[1] To be eligible as a Convention adoptee, the Central Authority of the child’s country of origin must also have determined that the child is eligible and available for intercountry adoption.^[2]

A Convention adoptee must meet the eligibility requirements under U.S. immigration law as described below.^[3] A child can have:

• Two living parents or legal custodians who release the child for emigration and adoption (if there is a direct relinquishment by the birth parents, the birth parents must be incapable of providing proper care); or 
• A sole or surviving parent who releases the child for emigration and adoption and the other parent has died, disappeared, abandoned, or deserted the child. 

Definitions

Foreign official documents and laws may use different terms from those used in U.S. immigration law or use the same terms but with different meanings to define eligibility criteria for Convention adoptees. To determine if a definition or requirement under U.S. immigration law is met, USCIS considers the laws of the child's country of origin and the required actions by the foreign Central Authority.

USCIS also considers the facts and circumstances of the particular case given the totality of the record. While some of the terms used in the Convention adoptee definition are the same as those used in the orphan definition, they often have different meanings or requirements.

A. Two Living Birth Parents or Legal Custodians

1. Irrevocable Consent

The child's birth parents or other persons or institutions who retain legal custody of the child must have freely given their written irrevocable consent to the termination of their legal relationship with the child and to the child's emigration and adoption.^[4]

2. Incapable of Providing Proper Care

In the case of a child released for adoption by two living birth parents directly to an individual (rather than to an orphanage or institution authorized under the Convention country's child welfare laws to act in such a capacity), the petitioner must demonstrate that the birth parents are incapable of providing proper care.^[5] Incapable of providing proper care means that in light of all the relevant circumstances, including economic or financial concerns, extreme poverty, medical, mental, or emotional difficulties, or long term incarceration, the child's two living birth parents are not able to provide for the child's basic needs, consistent with the local standards of the Convention country.^[6] 

If two living birth parents release a child for adoption to an orphanage or institution that is authorized under the Convention country's child welfare laws to act in such a capacity, the petitioner does not need to establish that the birth parents are incapable of providing proper care. However, irrevocable consent by the birth parents and legal custodian is still required.

B. Sole Parent or Surviving Legal Parent

1. Sole or Surviving Parent

A birth parent may be a sole parent or a surviving parent if:^[7]

• The other parent is deceased (for a surviving parent), or the competent authority has determined that the other parent disappeared, abandoned, or deserted the child (for a sole parent); and
• The child has not acquired a new legal parent under the law.^[8]

The sole or surviving parent must irrevocably consent to the adoption in writing. However, the petitioner does not have to demonstrate that a sole or surviving parent is incapable of providing proper care for the child.

2. Disappearance

Disappearance means that a child's parent has unaccountably or inexplicably passed out of the child's life so that their whereabouts are unknown, there is no reasonable expectation of their reappearance, and there has been a reasonable effort to locate them, as determined by a competent authority in accordance with the laws of the Convention country.^[9]

A stepparent who is deemed to be a child's legal parent may be found to have disappeared if it is established that the stepparent either never knew of the child's existence, or never knew of their legal relationship to the child.

3. Abandonment 

Abandonment means that a child’s parent: 

• Has willfully forsaken all parental rights, obligations, and claims to the child, as well as all custody of the child without intending to transfer, or without transferring, these rights to any specific individual or entity; and
• Surrendered such rights, obligations, claims, control, and possession. 

Knowledge that a specific person may adopt a child does not void an abandonment; however, abandonment cannot be conditioned on the child's adoption by that specific person. If the parent entrusted the child to a third party for custodial care in anticipation of, or preparation for, adoption:

• The third party (such as a governmental agency, court of competent jurisdiction, adoption agency, or orphanage) must have been authorized under the Convention country's child welfare laws to act in such a capacity; and 
• The transfer must have been permanent and unconditional with the intent to terminate the legal parent-child relationship. 

To meet the definition of abandonment, the petitioner must establish by a preponderance of evidence that the child’s parent abandoned the child.^[10] If a written document is used to help establish this, the document must:

• Specify whether the parent(s) who signed the document were able to read and understand the language in which the document is written; or 
• If the parent(s) are not able to read or understand the language in which the document is written, then the document must be accompanied by a declaration by an identified person, establishing that the identified person is competent to translate the language in the document into a language that the parent(s) understand and that the identified person, on the date and at the place specified in the declaration, read and explained the document to the parent(s) in a language that the parent(s) understand. The declaration must also indicate the language used to provide this explanation. 

4. Desertion 

Desertion means that a child's parent has willfully forsaken the child, refused to carry out their rights and obligations, and that, as a result, the child has become a ward of a competent authority in accordance with the laws of the Convention country.^[11]

Desertion does not mean that the parent has disappeared, but rather that they refuse to carry out their parental rights and obligations towards the child. Desertion differs from abandonment in that the parent has not taken steps to divest themselves of parental duties, but the parent’s inaction has caused a local authority to step in to assume custody of the child.

C. Other Legal Parents

USCIS considers a parent to include any person who is related to a child in any of the ways specified in the definition under U.S. immigration law.^[12] The officer must determine for each parent whether the person has legal rights to the child in accordance with the Convention country’s laws. If the officer determines that a person is a legal parent, the officer must determine whether the child still meets the Convention adoptee definition in light of the legal parent.

Stepparents

USCIS must consider the existence of a stepparent in determining whether a child is a Convention adoptee.^[13] The officer must determine whether the stepparent has a legal parent-child relationship with the child under the Convention country’s laws.^[14]

If an officer determines that the child has a stepparent, the officer should request additional evidence from the prospective adoptive parent (PAP), including:

• A copy (with a certified English translation, if applicable) of the relevant statutes, regulations, court judgments, or other legal authority from the country of origin addressing whether a stepparent has a legal parent-child relationship to the stepchild; and
• A statement from the stepparent (with a certified English translation, if applicable) indicating that the stepparent has neither adopted the stepchild nor obtained any other form of legal custody of the stepchild and does not intend to do so. 

USCIS considers a stepparent to be a parent for purposes of adjudication of a petition if:

• The stepparent adopted the stepchild as specified in U.S. immigration law;^[15]
• Under the Convention country’s laws, the marriage between the parent and stepparent creates a legal parent-child relationship between the stepparent and stepchild; or 
• The stepparent has obtained legal custody of the stepchild establishing a legal relationship to the stepchild. 

In some jurisdictions, a stepparent does not have a legal parent-child relationship to a stepchild and would, therefore, not have any legal standing to perform any action terminating parental rights and duties.

USCIS does not consider a stepparent to be a child's parent for purposes of a petition if the PAP establishes that the stepparent has no legal parent-child relationship to the stepchild under the Convention country’s laws. The burden of establishing this rests with the PAP. The PAP cannot simply assert without evidence that the stepparent has no legal parental rights to the child.

If the officer determines the stepparent is a legal parent, the PAP must establish the child still meets the Convention adoptee definition in light of the stepparent and that the stepparent has consented to the adoption, in the same manner that would apply to any other legal parent.

Footnotes

[^ 1] See 8 CFR 204.301 for the definition of a Convention adoptee. For information on habitual residence determinations, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2]. See 8 CFR 204.303.

[^ 2] The Central Authority of the child’s country of origin will affirm the child’s eligibility and availability for intercountry adoption in accordance with the country of origin’s laws when referring the child to the PAP and sending an Article 16 report. An Article 16 report is an official report on the child. For more information on the Article 16 report, see Chapter 8, Documentation and Evidence, Section B, Required Evidence, Subsection 2, Article 16 Report and Accompanying Evidence [5 USCIS-PM D.8(B)(2)].

[^ 3] See INA 101(b)(1)(G). See 8 CFR 204.301.

[^ 4] See INA 101(b)(1)(G)(i)(II). See 8 CFR 204.301. For more information on irrevocable consent requirements, see Chapter 8, Documentation and Evidence, Section B, Required Evidence, Subsection 2, Article 16 Report and Accompanying Evidence [5 USCIS-PM D.8(B)(2)].

[^ 5] See INA 101(b)(1)(G)(i)(III). See 8 CFR 204.301.

[^ 6] See 8 CFR 204.301.

[^ 7] See the definitions of sole parent, surviving parent, abandonment, deserted or desertion, and disappeared or disappearance at 8 CFR 204.301.

[^ 8] See Section C, Other Legal Parents [5 USCIS-PM D.4(C)].

[^ 9] See definition of disappeared or disappearance at 8 CFR 204.301.

[^ 10] See definition of abandonment at 8 CFR 204.301. For information on standards of proof for immigration petitions, see Chapter 9, Adjudication, Section B, Burden and Standards of Proof [5 USCIS-PM D.9(B)].

[^ 11] See 8 CFR 204.301.

[^ 12] See INA 101(b)(2).

[^ 13] Under the law of some jurisdictions, a stepparent may adopt their spouse's child without terminating the legal parent-child relationship between the child and their other parent. The adoptive stepparent may then qualify as a parent through INA 101(b)(1)(E), as well as INA 101(b)(1)(B).

[^ 14] For information on resources on foreign law, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity, Section A, Determining the Validity and Effect of an Adoption, Subsection 7, Evidence About the Applicable Adoption Law [5 USCIS-PM A.4(A)(7)].

[^ 15] See INA 101(b)(1)(E).