Joint Council Position on I-600A Renewals

As previously noted, Joint Council and others in our field have great concern regarding the one-time renewal of I-600A approvals and the impact on Potential Adoptive Parents (P.A.P.s).   Following is Joint Council’s assessment and statement on this very important issue faced by over 10,000 U.S. families.

Overview

U.S. Citizenship and Immigration Services’ (USCIS) final regulations, issued in May 2007, state that P.A.P.s with an approved I-600A may only file for a one-time renewal one time.  According to USCIS, families must thereafter ‘start from the beginning’, which in Hague Convention countries, would require the family to file a new I-800 petition.  Joint Council maintains that this interpretation of the law is inconsistent with the best interests of potential adoptive parents and also, with Congressional intent.  Our arguments in support of this position are outlined below.

Allowing Families to Receive an Additional Extension is Consistent with Congressional Intent

The Intercountry Adoption Act of 2000 (IAA) included a “grandfather” provision and instructed USCIS to grant exceptions to the Hague requirements for all families who had filed I-600 or I-600A petitions prior to the date on which the Hague Convention went into force in the United States (April 1, 2008).  The intent of this provision was clearly to allow P.A.P.s to complete their adoptions without having to undergo new procedures or fulfill new requirements that were not in place when they began the adoption process.   

At the time the legislation was drafted, the average processing time for international adoptions was approximately 18 months.  Authors of the bill may not have included language regarding extensions simply because extensions were not a common occurrence as they now are in countries with longer processing times, such as China and Haiti.  It is also important to note that the “grandfather” clause included in the IAA merely says that the I-600 or I-600A had to be filed by the date on which the Hague convention went into force, which is true for both an original and an extended I-600 or I-600A.  Finally, it is customary for Congress to use what is called a “sunset” clause if Congress intends to limit the timeframe in which a law or section of law becomes applicable. The Intercountry Adoption Act of 2000 includes no “sunset” clause or any limitation on the application of the “grandfather” clause.

USCIS Has the Authority to Grant an Additional Extension

Despite this provision and its underlying intent, USCIS maintains that they are not authorized to grant continued exemptions for families who have filed to have their original I-600A extended. USCIS has stated that the law does not specifically mention families with “extensions” in the list of those families exempted from the new Hague requirements. 

Joint Council maintains that USCIS does have the authority to take action to correct this shortcoming in the law.  Section 103 (a) (3) of the Immigration and Nationality Act clearly gives the Secretary of Homeland Security the authority to “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”   This broad authority is only limited if the action proposed to be taken by the Secretary is inconsistent with either the spirit or the letter of the law.  In this case, the proposed action is neither.

Interestingly, it was under this authority that USCIS made the decision to amend its proposed rule (72 FR 4888, Feb. 2007) when issuing the final regulation proposed as part of “8 CFR Part 103 Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule.”  USCIS cited a large number of public comments, ardently mentioning the issue of undue cost. Therefore, they decided to allow a potential adoptive parent to receive one extension of the approval of the Application for Advance Processing of Orphan Petition (I-600A) at no charge.

It is important to note that USCIS’ decision to limit the rule to a one-time, free extension had nothing to do with the Intercountry Adoption Act of 2000 or the Hague Convention.  Any limitations placed in this rule were based on USCIS’ need to conform to a directive from the Federal Office of Management and Budget, requiring all federal agencies to set user charges sufficient to recover the full cost to the Federal Government. As USCIS explains in the rule, the process involved in granting a second exception is more burdensome than granting the first, and so would impose additional work on USCIS officers.  Joint Council does not disagree with this assessment, but suggests that the solution to this dilemma lies in collecting a fee for a second extension, not in limiting it altogether.

Requiring Families to Start Over with an I-800A Would Cause Undue Hardship for Families

Families, with the understanding that their cases would be “grandfathered,” initiated their adoption proceedings in good faith. They rightfully believed that the United States Government would honor the initial information provided by USCIS and the intent of the law (Intercountry Adoption Act of 2000).  

As a result of the current scenario, families will be impacted in three serious ways:

New Home Study

The Home Study process set forth under the Hague Convention is different than the process in non-Convention countries.  Affected families will be forced to incur the time and costs associated with acquiring a new Hague-compliant home study, new fingerprints and the I-800A filing.  These fees can total from $1,800 to over $3,000. 

Additionally, many states require new documentation including medicals, child abuse clearances and state fingerprints along with the new Home Study.  The collection of these documents and completion of the new home study will add a significant amount of time and effort to the families’ adoption process.  The child abuse clearance alone can easily take months. 

Finding a New ASP: Unnecessary Time, Cost and Uncertainty

Some P.A.P.s now find themselves engaged with an Adoption Service Provider (ASP) that was denied Hague Accreditation.  As a result, P.A.P.s are discovering that filing an I-800A will force them to contract with a Hague-Accredited ASP.  Disengaging from one ASP and contracting with a new ASP will cause further undue distress and hardship.  In addition to the hardships noted above, these P.A.P.s will incur the additional costs associated with contracting a new ASP.  The newly contracted ASP will rightfully charge a fee for the case management, advocacy and other services they provide.  The cost of contracting with a new ASP can range from $1,000 to $6,000. 

Some have argued that the financial position of ASPs denied Hague accreditation is at the core of our concerns.  Nothing could be further from the truth.  Those ASPs making such claims will, in fact, be the beneficiary of new fees if families are required to change ASPs.  Their argument is disingenuous, self-serving and not in the best interest of United States citizens seeking to adopt internationally. 

In a brief survey of ASPs, virtually all indicated that the goal is to honor the intent of the Intercountry Adoption Act of 2000 and allow families to complete their adoption through the I-600A process with their original ASP.  It is our belief that no reputable ASP is seeking to gain fees through an undue hardship on families.

Potential for Losing Their Place in Line

Joint Council also expresses concern that the Central Authorities of sending countries have not definitively confirmed the impact that transitioning from the I-600A process to the I-800A process would have on the processing of these cases.  Similarly, the U.S. Department of State (DOS), despite dialogue with other Central Authorities, has yet to confirm the impact on families.  Joint Council recognizes that some Central Authorities and DOS have provided suggested impacts, but no definitive confirmation has been issued to-date.  With over 10,000 families affected by these decisions, now is not the time to rely on good will or suppositions.

Fixing the Problem

Joint Council and others have repeatedly expressed the above concerns to the U.S. government.  In response, USCIS continues to maintain that they are not in a position to solve this problem.  We respectfully disagree.  Based on the analysis above, we are calling on USCIS to take one of the following actions immediately:

1.       Use its existing authority to allow transition families to file for a second or third 18-month extension.

2.       Communicate to Congress the need to pass emergency legislation allowing transition families to file for a second, 18-month extension.

Joint Council recognizes and appreciates the need for the United States to transition quickly and smoothly to Hague Convention standards.  We also recognize the concerns that gave rise to the newly established procedures and rules.  We, therefore, support any efforts by USCIS to incorporate some of these new requirements in the petition for a second extension, as long as doing so would not be unnecessarily burdensome for families.  For instance, Joint Council would not object if families petitioning for a second extension undergo the additional medical or criminal background checks currently required by The Hague Convention.

Summary

Joint Council suggests that relying on good faith or probabilities is not a sufficient response to this very important issue.  Given that over 10,000 U.S. families will be significantly and negatively impacted, we continue to call on USCIS to work collaboratively and aggressively with Congress and others in the United States Government toward an immediate resolution. 

In order to assist Joint Council with our advocacy on behalf of families, particularly those adopting from China, Joint Council asks all families impacted by the one-time limit of I-600A renewals to follow our Call to Action in support of an immediate resolution to our efforts.