Is it possible to Adopt a child while on H1B Visa?

July 23, 2008

Please understand that I am not anti-immigration, and I am not a supporter of the current Administration's policies in many areas.

I definitely would like to see a truly comprehensive overhaul of the U.S. immigration system, not just with regard to adoption, but with regard to many aspects of the current situation.

With regard to adoption, there are a couple of things I'd like to see:

1. A review of the rationale for the distinction between the IR-3 and IR-4 visas, in the case of children who receive a final decree of adoption overseas.

I believe that the IR-4 visa is appropriate for a child who comes to the U.S. under a decree of guardianship, for adoption in this country. Such a child has not had a full and final adoption overseas, and should be adopted legally in this country before being eligible for citizenship and so on. The IR-4 helps to ensure that families will actually go ahead with their adoption, and won't forget about it, leaving the child in a stateless condition.

However, I do NOT believe that there is a justification for the IR-4 visa's use in the case of children who receive a final decree of adoption abroad, but who are not seen by all relevant parents prior to the issuance of that decree. I have not seen any evidence that the likelihood of adoption disruption is greater in such cases, or that there is more likelihood of any sort of adoption fraud in any such cases, or anything else that would lead me to believe that it's in the U.S.'s interest to treat these children differently from IR-3 children.

In short, I believe that a child who has had a properly conducted, ethical adoption overseas should have the adoption acknowledged by the U.S. government, regardless of whether all relevant parents saw him/her ahead of time. I believe that such a child should be granted an IR-3 visa, and should become a U.S. citizen upon entering the U.S.

2. A review of the "orphan definition". At present, it is not possible to get an adoption visa (IR-3 or IR-4) for a foreign-born child who has been living with married birthparents or birthparents living together in a common law arrangement recognized by the foreign country. The child must:

a) Have been living with a single birthparent who cannot support him/her at a level considered normal in the foreign country; or,

b) Have lost both biological parents to death; or,

c) Have been abandoned, with birthparent whereabouts unknown; or,

d) Have been removed from the biological parent(s) by a legitimate court, for cause (e.g., abuse or neglect); or,

e) Have been legally and permanently relinquished by the biological parent(s), and have no contact with the parent(s).

It is my understanding that the "orphan definition" was put in place to prevent situations where couples wanted their child to have the advantages of growing up in the U.S., and created a sham adoption that would entitle him/her to a visa. They had no intent to relinquish the child irrevocably, and planned either to get a visa to join their child in the U.S. eventually, or to bring the child home after he/she was educated.

I have not seen proof that married couples are any more likely to arrange such sham adoptions than single people are. I also have not seen proof that sham adoptions occur in significant numbers, and could not be prevented by a careful review of I-600 applications. What I have seen is plenty of kids living in impoverished two parent homes, where the living conditions are just as bad as they are in single parent homes.

3. A clarification of the automatic citizenship process, once and for all. The Child Citizenship Act of 2000 seems to have made it clear that the intent of Congress was to grant all children, internationally adopted by Americans, automatic U.S. citizenship as long as certain basic conditions were met. Unfortunately, the USCIS is still having some difficulty with this law. Although it has FINALLY agreed -- after much discussion -- to issue a certificate of citizenship automatically to IR-3 kids coming home now, it still wants to go through yet another review of documents for all other kids, even AFTER they have gone through readoption/recognition in their home state.

4. A review of the citizenship process for children adopted by American citizens living overseas, with at least the possibility that such children will NOT have to make a trip to the U.S. in order to qualify for automatic citizenship.

5. A review of the decision NOT to extend automatic citizenship to children who had reached the age of 18 by February, 2001. There are still young adults whose parents failed to naturalize them, mainly through ignorance, and who, although American in every way, would be subject to deportation if they committed a crime. These young adults often do not realize that they are not citizens, and have never seen their birthland except as babies. Yet such young adults have actually been deported after commission of a crime and completion of a prison sentence, just like any other non-citizen.

6. Obviously, a change in the Constitution that would allow internationally adopted children to become President when they attain the appropriate age. More broadly, I think that the law should allow anyone who has been a U.S. citizen for at least 20 years to become President.

7. I would like to open a new dialogue between Western and Islamic countries, with regard to the definition of adoption for immigration purposes. Islamic law defines adoption in a totally different way from Western law. It does not permit the severance of the legal relationship between birthparent and child, for example. The child keeps the biological parent's name and inheritance rights, for example. The biological parent is encouraged to have a voice in the religious education of the child. And the child may return to the biological parent, if it becomes possible and if the child desires to do so.

Current U.S. immigration laws make it difficult for U.S. citizens, who happen to be Orthodox Muslims, to adopt, unless they adopt from a country that is fairly liberal in its interpretation of Shaaria and will create paperwork that satisfies U.S. immigration requirements.

When religious Muslim Americans take in a child in THIS country, they do so as foster parents, meeting all state foster parent requirements, but they do not go through a formal adoption. This satisfies both the requirements of their state and of Shaaria, Islamic law.

But, as a result of the definition of adoption, a child from a strict Islamic country generally is NOT eligible for an adoption visa by American Muslims. If the relationship with the bio parents may not be severed, then from the standpoint of Western law, there is foster care or guardianship, not adoption; thus, the child does not meet the requirements for an adoption visa, which requires the total relinquishment of the rights of the birthparents and the treatment of the adopted child exactly like a biological child.

While I fully support the Western definition of adoption, I also support religious freedom. I believe that, for humanitarian reasons, the U.S. should consider allowing an exemption to the current visa requirements for a child from an Islamic country being adopted by Orthodox Muslim American citizens, if the country in which the child lives has faced a natural or manmade disaster.

Finally, I would see no harm in a review of the current legal barriers to immigration of a child adopted by legal permanent residents, although not by other non-citizens. HOWEVER, I would want to see clear proof that such adoptions were no more likely to involve fraud than any other adoptions, and I would want to see a new tightening of the review process of I-600s to ensure that fraudulent adoptions do not occur.

On that theme, I believe that there should be strict standards for the issuance of adoption visas, so that people cannot misuse the visas on behalf of folks who do not qualify for them. That being said, I believe that the visa issuance process, as it currently occurs, is very flawed, not just in adoption, but in other areas. People are being denied visas who clearly deserve them, and people are successfully entering this country who do not belong here. Look at the 9/11 terrorists!

Whatever laws the U.S. makes concerning who is eligible for a visa should be subject to appropriate enforcement. As an example, any I-600 petition to bring a child into the U.S. on an adoption visa ought to be investigated in a way that, virtually 100% of the time, will allow eligible children to immigrate, while denying visas to ineligible children.

Unfortunately, at this time, I believe that this is not happening. Many, many adoptive parents have faced denials of IR-3 or IR-4 visas to children, when subsequent investigations turned up no evidence that the children were inadmissible. And in many cases, the birthparents of these children were subject to investigations that made no sense and only served to stigmatize them in their local communities.

As an example, during the events leading up to the first closure of Vietnam and the closure of Cambodia, a child was denied an adoption visa, because it was alleged that the child had been living with two parents, including the biological father. In fact, because of shoddy investigation, it turned out that the child had actually been living with his biological mother and another woman, whose name simply rhymed with the name of the biological father; this other woman was most definitely NOT the biological father of the child!

The people adjudicating orphan petitions must be able to do an investigation fully and fairly AND with sensitivity to the local culture. In many cultures, it is shameful if a woman becomes pregnant outside of marriage, for example. If an investigator goes blundering around her village, asking about her relinquishment of a child, it could bring stigma not only to her, but also to her whole family.

In terms of the processing of non-adoption visas, I believe that with a combination of American technology and the American work ethic, we COULD speed up the processing of visas, without any sacrifice in the accuracy of visa processing. There is no reason why some families need to wait six months for a 171-H, for example.

All in all, I have given a lot of thought to the issue of adopting and immigrating foreign born children., as well as to the issue of immigrating foreign born people of all sorts. I am actually FOR expanded immigration and a process that speeds immigration applications, as long as these things are done in the context of more rational immigration laws, better enforcement, speedier prosecution of illegal immigrants and people who overstay their visas, a better system for integrating immigrants into our country's culture, and so on.

With regard to non-adoption immigration issues, I would like to see ALL immigration occur in the context of services to help people integrate into American society. While I have no doubt that it would be expensive, I believe, for example, that there should be MANDATORY, FREE language and culture classes for all adult immigrants under age 65 or 70 -- on the model of the Israeli "ulpan" system.

To make sense and reduce costs, the requirements should be based on the immigrant's circumstances. A person from an English speaking country, with at least a high school education, should have to take only courses specifically related to U.S. laws and customs, for a brief period of time.

A person who is illiterate in his/her own language, or who comes from a culture that does not have a written language, might have to enroll in up to 4-years of part-time courses focused not only on spoken English, literacy, and basic education, but also on fundamentals like using a bank, applying for a job, obtaining the right to drive, getting a Social Security card that allows him/her to work, choosing from the unfamiliar foods in the market, using laundry machines, and so on.

I believe that, if we truly made a commitment to helping each and every legal immigrant integrate into U.S. society, the benefits would be enormous in terms of an increased standard of living, increased work productivity, reduced crime, improved relations among the cultural groups, etc.

If we really put forth efforts to help legal immigrants assimilate into American society, I believe that we would recognize that we have increased ability to absorb immigrants, and could raise current quotas. And if we really put forth efforts to help legal immigrants assimilate into American society, I believe that more foreign-born people would choose to try to immigrate legally, rather than to come to the U.S. illegally.

I am grateful to foreign born people who come to the U.S. on various non-immigrant visas, in order to do the jobs that Americans won't do, or to bring skills that are in short supply in the U.S. I have the greatest respect for the foreign workers who pick our crops, tend to the needs of frail elderly people, provide medical and nursing care in underserved areas, strengthen our computer industry, and so on.

I know that some of those people would like to come to the U.S. permanently. And perhaps, if we could reform our immigration system, it would be possible. Still, while these people are guest workers, I do believe that they need to understand that they cannot have all of the privileges of citizens, or even of permanent residents.

Sharon