Chapter 8 - Documentation and Evidence

A. Filing

To request a determination of a child’s eligibility for classification as a Convention adoptee, a prospective adoptive parent (PAP) files a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800), and any required fee, supplements, or supporting forms in accordance with form instructions.^[1]

Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act)^[2]

A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition,^[3] including adoption petitions, on behalf of any family-based beneficiary.^[4]

B. Required Evidence

The PAP must submit required evidence in accordance with form instructions.^[5] The table below summarizes what evidence is required for petitions and what additional evidence is required for certain cases.

If the Central Authority matches the PAP with a child more than 6 months after the child’s 15th birthday, but before the child’s 16th birthday (or for a qualifying sibling, 6 months after the child’s 17th birthday, but before the child’s 18th birthday), the PAP may file the petition without all of the applicable supporting evidence. The PAP must submit a statement from the primary provider, under penalty of perjury, confirming that the Central Authority made the adoption placement on the date specified in the statement.^[7]

1. PAP is Suitable and Eligible to Adopt

To show that USCIS found the PAP suitable and eligible to adopt, the PAP must submit a copy of a valid unexpired Form I-800A or Form I-800A, Supplement 3 approval notice.^[8] The approval notice must be valid at the time the PAP files Form I-800.

The Form I-800A or Form I-800A, Supplement 3 approval does not need to remain valid while the Form I-800 is pending, but the PAP’s duty of disclosure remains ongoing.^[9] The PAP cannot request an updated suitability determination or make any additional petition filings without a valid suitability approval.

2. Article 16 Report and Accompanying Evidence

An Article 16 report is an official report from the Central Authority on the child’s identity, adoptability, background, family history, medical history, and any special needs. The PAP must submit an Article 16 report that meets all the requirements of the Hague Adoption Convention.^[10]

The report may consist of more than one document, as long as the documents address all of the required elements. The report must specify the child’s name and date of birth, indicate the reasons for making the adoption placement, and establish that the Central Authority:

• Determined that the child is eligible for intercountry adoption; 
• Considered placing the child for adoption within the child’s country of origin, and determined that intercountry adoption is in the child’s best interests; 
• Ensured that any identifiable birth parent or legal custodian freely consented to the child’s adoption in writing after appropriate counseling; 
• Ensured the child has freely consented in writing to the adoption after appropriate counseling (if the child is of an age that the Convention country’s laws require the child’s consent) and considered the child’s wishes and opinion; and 
• Ensured that no payment or inducement of any kind has been given to obtain the necessary consents. 

The following evidence must accompany the Article 16 report:^[11]

• A copy of the child’s birth certificate that includes the name of the child’s birth parent or parents, or secondary evidence of the child’s age and identity (if a birth certificate is not available); 
• A copy of any needed irrevocable consents;^[12]
• A statement from the primary provider certifying the report is a true, correct, and complete copy of the report from the Central Authority; and 
• A summary of the information provided to the PAP concerning the child’s medical and social history.^[13]

This summary, or a separate document, must include: 

• A statement as to whether there is reason to believe the child has any medical condition that makes the child inadmissible.^[14] If the medical information available at the provisional approval stage is not sufficient to assess whether the child may be inadmissible, the PAP may submit the information to DOS before seeking final approval of the petition. 
• The factual basis for being unable to provide proper care (if both of the child’s birth parents were the child’s legal custodians and signed the irrevocable consent). 
• Information about the parent’s or legal custodian’s death and a copy of the death certificate (if applicable). 
• The circumstances leading to the determination that a parent or legal custodian is a sole parent (if applicable). 
• The circumstances leading to the custodian's acquisition of custody of the child and the legal basis of that custody (if the legal custodian was any individual or entity other than the child’s birth parent or parents). 

Delayed Birth Certificates

Generally, USCIS does not give the same weight to delayed birth certificates as birth certificates issued at the time of birth due to the potential for fraud.^[15] Certain jurisdictions, however, may not issue birth certificates to children until they become involved in an intercountry adoption.

An officer must determine the reliability of the facts contained in the delayed certificate in light of the other evidence in the record and should not reject the delayed certificate's evidentiary value simply because it was not issued at the time of the child's birth.

Officers should check the DOS’s U.S. Visa: Reciprocity and Civil Documents by Country Schedule^[16] to determine a document's availability and reliability. If the officer determines that reliability is a concern, the officer should request additional evidence.

Written Irrevocable Consent

The irrevocable consent must meet the following requirements:^[17]

• Establish that the legal custodian freely consents to the termination of the legal custodian's legal relationship with the child; 
• Indicate the place and date the document was signed by a child's legal custodian; 
• If signed by the child's birth mother or any legal custodian other than the birth father,^[18] have been signed after the child's birth; 
• Specify whether the legal custodian is able to read and understand the language in which the consent is written; 
• If the legal custodian is not able to read or understand the language in which the document is written, then the document does not qualify as an irrevocable consent unless the document is accompanied by a declaration signed by an identified person who meets the following requirements: 
  • Establish that the identified person is competent to translate the irrevocable consent into a language that the legal custodian understands; 
  • Establish that the person, on the date and at the place specified in the declaration, read and explained the consent to the legal custodian in a language that the legal custodian understands and indicates the language used to provide this explanation; and 
  • Certify the truth of the facts stated in the declaration, if the person who signed the declaration is an officer or employee of the Central Authority (but not of an agency or entity authorized to perform a Central Authority function by delegation) or any other governmental agency. Any other person who signs a declaration must sign the declaration under penalty of perjury under U.S. law. 

3. Pre-Placement Training Statement

The PAP must submit a statement from the primary adoption service provider verifying that the PAP met required pre-placement preparation and training requirements provided for under federal regulations.^[19]

4. Application for Waiver of Grounds of Inadmissibility (Form I-601)

If a PAP knows that the child is inadmissible for an inadmissibility ground for which a waiver is available (such as for certain medical conditions), the PAP must submit an Application for Waiver of Grounds of Inadmissibility (Form I-601).^[20] The PAP must submit the application in accordance with form instructions.^[21]

5. Additional Evidence for Children Coming to the United States for Adoption

USCIS considers a Convention adoptee to be coming to the United States for adoption if the PAP does not complete a final adoption abroad, or if only one parent of a married couple completes the adoption abroad.^[22] If a child is coming to the United States for adoption, the PAP must submit the following in addition to the evidence outlined above:

• Affidavit of Support Under Section 213A of the INA (Form I-864); 
• Evidence that the PAP met any pre-adoption requirements; and 
• A statement on post-placement services. 

Affidavit of Support

If the child is coming to the United States for adoption, the PAP must include a completed and signed Affidavit of Support Under Section 213A of the INA (Form I-864) with their petition unless the child is otherwise exempt.^[23]

Evidence the PAP Met the Pre-Adoption Requirements

If the child is coming to the United States for adoption, the PAP must meet any pre-adoption requirements of the jurisdiction where they will reside. Pre-adoption requirements vary by jurisdiction and the PAP must describe them on the petition.^[24] The PAP must describe:

• Which pre-adoption requirements have been met; 
• When and how the PAP intends to complete the child’s adoption; and 
• When and how the PAP intends to satisfy any requirements that can be satisfied only after the child arrives in the United States.^[25]

Post-Placement Services Statement

If the child is coming to the United States for adoption, the PAP must submit a written report from the primary provider, signed under penalty of perjury by the primary provider (or an authorized representative of the primary adoption service provider) detailing the primary adoption service provider’s plan for post-placement services.^[26]

C. Primary and Secondary Evidence

A PAP should submit primary evidence when available.^[27] Primary evidence is evidence that, on its face, proves a fact. For example, primary evidence of death is a death certificate issued by the appropriate authority.

Not all countries, however, have the same kind of documentary practices as the United States. If primary evidence is not available, a PAP must demonstrate its unavailability and should submit secondary evidence.^[28]

If both primary and secondary evidence are unavailable, the PAP must demonstrate the unavailability of the primary and secondary evidence and submit two or more affidavits that are sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.^[29]

Footnotes 

[^ 1] See instructions for Form I-800. For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)]. See Fee Schedule (Form G-1055) to determine if a fee is needed for Form I-800 and its supplements.

[^ 2] See Pub. L. 109-248 (PDF) (July 27, 2006). For more information, see Volume 6, Immigrants, Part C, Adam Walsh Act [6 USCIS-PM C].

[^ 3] This includes Form I-800.

[^ 4] See INA 204(a)(1)(A)(i), INA 204(a)(1)(B)(i), and INA 101(a)(15)(K).

[^ 5] See instructions for Form I-800. See 8 CFR 103.2(b).

[^ 6] The PAP does not submit the adoption or custody order with the Form I-800 petition, but rather as part of the final approval process. For more information, see Chapter 9, Adjudications, Section D, Decisions and Actions, Subsection 2, Approvals [5 USCIS-PM D.9(D)(2)].

[^ 7] See 8 CFR 204.313(c)(2).

[^ 8] See 8 CFR 204.313(d)(1). For information on extensions of approval periods, see 8 CFR 204.312(e).

[^ 9] See Part B, Adoptive Parent Suitability Determinations, Chapter 4, Home Studies, Section P, Duty of Disclosure [5 USCIS-PM B.4(P)].

[^ 10] See 8 CFR 204.313(d)(3). See the Hague Adoption Convention (PDF).

[^ 11] See 8 CFR 204.313(d)(4).

[^ 12] For information on when irrevocable consent is required, see Chapter 4, Eligibility Requirements Specific to Convention Adoptees [5 USCIS-PM D.4]. If the laws of the country prohibit providing the identity of the parent or legal custodian, then they do not need to provide the consent documentation. However, the Central Authority must certify in its report that the documents exist, and that they establish the child’s age and availability for intercountry adoption.

[^ 13] See 22 CFR 96.49 and 8 CFR 204.313(d)(4).

[^ 14] See INA 212(a).

[^ 15] See Matter of Bueno-Almonte (PDF), 21 I&N Dec. 1029, 1032-33 (BIA 1997). See Matter of Ma (PDF), 20 I&N Dec. 394 (BIA 1991). See Matter of Serna (PDF), 16 I&N Dec. 643 (BIA 1978).

[^ 16] See DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage.

[^ 17] See 8 CFR 204.301.

[^ 18] The birth father may sign an irrevocable consent before the child's birth if permitted by the law of the country of the child's habitual residence. See 8 CFR 204.301.

[^ 19] See 22 CFR 96.48 and 8 CFR 204.313(d)(2).

[^ 20] See 8 CFR 204.313(d)(5). For information on inadmissibility provisions, see INA 212(a).

[^ 21] See instructions for Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800). See instructions for Form I-601. For more information on inadmissibility waivers, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 22] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].

[^ 23] See 8 CFR 204.313(d)(6). See Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility, Chapter 6, Affidavit of Support Under Section 213A of the INA [8 USCIS-PM G.6].

[^ 24] The home study must also provide details about any required pre-adoption requirements. See Part B, Adoptive Parent Suitability Determinations, Chapter 4, Home Studies, Section M, State-Specific Requirements [5 USCIS-PM B.4(M)].

[^ 25] See 8 CFR 204.313(h)(1)(ii)(C).

[^ 26] See 8 CFR 204.313(d)(6). For information on post-placement duties, see 22 CFR 96.5.

[^ 27] Officers should check DOS's U.S. Visa: Reciprocity and Civil Documents by Country webpage to determine a document's availability and reliability.

[^ 28] See 8 CFR 103.2(b)(2)(i). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 USCIS-PM E.6(B)].

[^ 29] See 8 CFR 103.2(b)(2)(i)-(ii).