Exploring Visas for Orphans

PAPs wanting to adopt can have their potential adoptee come to the US on an IR-3 visa (Hague/visited child in other country and had legal adoption in other country) or an IR-4 Visa (aka guardianship, escorted child, no legal proceeding out of country).

There are schemes in which children come to the US on a different type of visa and end up adopted or set up for a US adoption. There are also instances of children who use adoption as their means for getting into the US for other purposes.

This post is intended as a starting point to explore some types of visas and how they can be related to adoption.

Medical Visa. This is the B-2 visa, Medical treatment for visitors. It does not have the USCIS approval process as the IR-3 or IR-4 does.

A medical visa is NOT supposed to be used for adoption but it OFTEN is. It was attempted by a religious organization (Bridgestone) to be used in postearthquake Haiti (they chatted about it on the internet and the operation was squelched) and has been used in Haiti since then See here . Liberia is another placing country whose medical visas turn into adoptions. See here . It is important to emphasize that this type of visa is generated by an adoption agency or NGO who is hoping to get a client on the other end—in other words, it’s a backdoor adoption. This is either a way for an organization to “save” a child that does not qualify under the “orphan” definition, or for an adoptive parent who would otherwise not qualify for an adoption in that country. For Haiti, that could be due to family size OR the 10 year marriage requirement.

Tourist Visa. This is also the B-2 visa-Tourism, vacation, pleasure visitors. It also does not have the USCIS kind of hurdle as the IR-3 or IR-4 visa. This is likely used for orphan hosting programs. Each Spring, adoptive parent groups are inundated with hosting program requests. If it is Ukraine hosting, there is no pre-selection allowed, yet these kids often get adopted after hosting. There have been all kinds of scams with getting orphans who are ineligible for international adoption visas for this purpose over the years. Many of these turn into adoptions, but some do not. This is another backdoor adoption route. The agency or NGO or individual facilitator first gets orphans the visa, THEN the potential family meets the kid and then the process begins; often the children are not eligible for adoption at the time of the hosting. This should not be happening in Hague countries.

Educational Visa. This is the F or M visa for Students: academic, vocational. In order to get this visa you must get approval via the SEVIS (Student and Exchange Visitor Information System).

Because it is hard to get this type of visa, this scheme involves using adoption visas in order to have the “adoptees” be allowed to gain an education in the US. Agencies are complicit in this scheme. The examples we have seen involve Chinese and Ethiopian orphans saying that they want to be adopted/agreeing to be adopted after being sought out so that they can get educated here under the guise of adoption. We would not be surprised if this is occurring in other countries as well. So the adoption visa would technically be valid as the child was adopted, but it is unethical and the child/AP relationship is not parent/child. Instead, it is child/sponsor gone bad. There have been all kinds of “post-adoption” issues in these circumstances.

Entertainment Visa. There are all kinds of entertainment visas. The one we believe is being used is the P-3 (Artist or Entertainer Part of a Culturally Unique Program). There are Orphan choirs and tours that we have seen in this entertainment category. This is another method that the US is just fine with is used to promote adoption.

The scheme is to set up adoption or gain clients (PAPs). The NGOs are not adoption agencies themselves but often are affiliated with religious organizations that are promoting the orphan “theology.” We suppose that the Q Visa (Cultural Exchange) or P-2 Visa( Performer or Group Performing under Reciprocal Exchange Program) could be exploited in the same fashion.

P3 information from USCIS
“The P-3 classification applies to you if you are coming temporarily to perform, teach, or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

Eligibility Criteria
For a P-3 visa, you must be coming to the United States either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, you must be coming to the United States to participate in a cultural event or events which will further the understanding or development of your art form. The program may be of a commercial or noncommercial nature.

Application Process
Your U.S. employer or sponsoring organization must submit Form I-129, Petition for a Non-Immigrant Worker. For more information about the Form I-129, see the “Form 1-129, Petition for Nonimmigrant Worker” link to the right.

Please note that a petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent. The required conditions can be found at the link to the right (see the memorandum “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications”.

Supporting Documents

Your Form I-129 must include the following documents:

Written consultation from an appropriate labor organization

A copy of the contract between the petitioner and the beneficiary or the summary of the terms of an oral agreement between the petitioner and the beneficiary

An explanation of the event and itinerary

Affidavits, testimonials or letters from recognized experts attesting to the authenticity of your or your group’s skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of your or your group’s skills; OR documentation that your or your group’s performance is culturally unique as evidenced by reviews in newspapers, journals or other published materials.

Documentation that all of the performances or presentations will be culturally unique events

Note: If the events or performances will take place in multiple areas, an itinerary must be submitted. The itinerary must list the dates and locations of the events.”

Q Visa Cultural Exchange information from USCIS
“Q Cultural Exchange

There are two nonimmigrant visa categories for persons who want to participate in Exchange Visitor programs in the United States. The J nonimmigrant visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs. The Q nonimmigrant visa is for international cultural exchange programs designated by USCIS. For more information on Exchange Visitors, see the “Department of State: Exchange Visitor (J) Visas” link to the right.

You may be eligible for a Q-1 nonimmigrant visa if you are seeking to participate in an international cultural exchange program. The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States.

Eligibility Criteria
Only employers who administer cultural exchange programs are allowed to petition for Q nonimmigrants. The purpose of the Q nonimmigrant visa is to facilitate the sharing of international cultures. It is an employment oriented program, but an integral part of your duties must have a cultural element. You must be at least 18 years old and be able to communicate effectively about the cultural attributes of your country.

Application Process
Your sponsoring organization must file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office specified in the form instructions (see the “Form I-129, Petition for Nonimmigrant Worker” link to the right). In addition, the employer must submit evidence that the employer maintains an established international cultural exchange program. This may be demonstrated by submitting copies of catalogs, brochures or other types of material which illustrate that the cultural component of the program is designed to give an overview of the attitude, customs, history, heritage, philosophy, tradition and/or other cultural attributes of the participant’s home country. The employer may also submit evidence which illustrates that the program activities take place in a public setting where the sharing of culture can be achieved through direct interaction with the American public or a segment thereof.

In addition, the employer must establish that:
It has designated a qualified employee to administer the program and serve as liaison with USCIS
It will offer the alien wages and working conditions comparable to those accorded local workers similarly employed

It has the financial ability to compensate the participant(s), as shown by a copy of the employer’s most recent annual report, business income tax return or other form of certified accountant’s report
Period of Stay/Extension of Stay

Initial Period of Stay: Up to 15 months”

Due to the period of stay of 15 months, this could be viewed as “bonding time” with the host family who then wants to adopt.

Abused Child Exemption/SIJS

http://www.rreeves.com/publications_detail.php?newsId=849   . A new..uh..entrepreneurial method… of getting kids here has sprouted up called Special Immigrant Juvenile Status (SIJS). This website explains that this “allows children to apply for a green card under certain circumstances.

Not only is this beneficial to the child but it also, ultimately, allows the child to be adopted without having to jump through the Hague “hoops.” SIJS is for children who have been abused, abandoned, or neglected. Because of this, if the child is a SIJS beneficiary, she can never petition for her biological family. The child must be in the United States and can be, but does not have to be, in removal proceedings.

The criteria for eligibility are that the child must have some history of abuse, abandonment or neglect; the child must either have or be able to file a case in State Court; the child must be unmarried; and be present in the United States and be admissible for adjustment of status. “Abuse”, “abandonment” and “neglect” are terms of art (meaning they have special meanings) and should be discussed with an immigration attorney who is knowledgeable about this area of law.

The procedure is a three step process.

First, the child must be under the jurisdiction of the State Court. This can mean the Probate Court (including Guardianships), Dependency Court, Delinquency Court, Family Court or Adoption Court. Some courts can only keep jurisdiction until the child turns 18. Other courts keep jurisdiction until the child turns 21. This is important because the State Court must have jurisdiction over the child in order to make necessary findings for SIJS eligibility.

The Court’s order must state that the child is under the jurisdiction of that court; that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and that it is not in the child’s best interest to be returned to the home country.

If the child is in Dependency or Delinquency court, she is a ward of the court. If the child is in any other court, the judge will need to appoint a guardian for the child. The guardian can be the person with whom the child will ultimately live. In fact, the child may be living with that person now. And, the child may be related to that person as long as the person is not the biological parent. The guardian does not need to have legal immigration status.

Once the SIJS order is obtained, the next step is for the child to file a self-petition for SIJS status. This petition must be adjudicated within 180 days of filing.

The third step is for the child to apply for adjustment of status. If the child is in proceedings, the case can be completed in court. If the child is not in proceedings, the adjustment can be completed through CIS. As stated above, the child must be eligible to adjust. However, special provisions are made for SIJS children.

SIJS children are deemed paroled into the United States for purposes of adjustment so it does not matter if the child entered without papers or if the visa expired. Many grounds of inadmissibility can be waived or are not considered at all. The only exceptions are adult criminal convictions and certain drug charges. Once the child is granted a green card under SIJS, she may be adopted without having to go through the Hague Process.

If the child is adopted by a United States citizen, the child may acquire U.S. citizenship upon the completion of the adoption. The SIJS requirements are very specific and, for that reason, an adult who is interested in helping or adopting a juvenile immigrant should consult a knowledgeable and experienced immigration attorney to ensure the best chances for success. “

T and U visas. These are NOT for adoptees. The T visa is for victims of human trafficking and requires USCIS approval. The U visa is for victims of criminal activity and requires USCIS for approval.

Of course there are adoptees who in fact have been trafficked and victims of crime, but trafficking definition legally never includes trafficking for adoption. What is interesting about these two visas is that those that qualify can apply for waivers for their biological family members to come to the US.

Contrast that to the international adoptees who want their original families to come to the US but are blocked.

The best explanation that I have seen about how international adoptees are blocked in getting their biological families to the US is in Declassified Adoptee’s post from a few weeks ago that is a MUST READ: http://adopteeimmigrant.blogspot.com/2012/01/our-families-cannot-come-to-usa.html

T visa and U Visa information

T and U Visas
Of course you can apply for a waiver ” Are admissible to the United States. If not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant”

AND you can bring your family with you , so wouldn’t this PROMOTE getting yourself trafficked?

“Filing for Qualifying Family Members

Certain qualifying family members are eligible for a derivative T visa.
If you are…. Then…
Under 21 years of age You may apply on behalf of your spouse, children, parents and unmarried siblings under age 18.
21 years of age or older You may apply on behalf of your spouse and children.
…

“U nonimmigrant status provides immigration protection to crime victims who have suffered substantial mental or physical abuse as a result of the crime. The U visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of the criminal activity.”

Waivers are available for the U visa as well.

USE Recently Promoted T and U Visas

As adoptees are being deported (see our posts here ) and illegal immigrants children are being taken into US foster care at increasing rates (see our posts here ), at the same time USE is promoting the T and U visas! Somehow, this is under the heading of Combating Human Trafficking…by placing a carrot of citizenship out there. I fail to see the logic. See http://blog.uscis.gov/2012/01/uscis-combats-human-trafficking.html

“27 January 2012
USCIS Combats Human Trafficking

Posted by Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services

Every year, thousands of innocent men, women, and children are exploited in human trafficking schemes around the world and right here in the United States. Victims are often lured from their homes with false promises of well-paying jobs and a better life. They are instead forced or coerced into prostitution, domestic servitude, farm or factory work, or other types of forced labor.

At U.S. Citizenship and Immigration Services (USCIS), we support the DHS Blue Campaign’s efforts to combat human trafficking by helping to protect victims of these horrible crimes. USCIS provides immigration relief in the form of T visas and U visas, which allow victims to remain in the United States and assist in the investigation or prosecution of the crime. These visas also provide a pathway to lawful permanent residence and permit certain family members to join them in the United States.

Earlier this month, Secretary Napolitano met Shiyma Hall, a brave young woman who was forced into domestic servitude when she was 9 years old. Today, Shiyma is free, and through the immigration benefits provided by USCIS, she is now a United States citizen. USCIS recently unveiled new resources and produced a video to highlight the immigration benefits available to victims of crime.

In addition, we provide regular Web-based trainings for law enforcement officials, and have provided more than 30 in-person trainings on combating human trafficking and the immigration benefits available for victims to Federal, State, and local law enforcement officials nationwide. We also contributed to the DHS U Visa Law Enforcement Certification Resource Guide, a new tool available to law enforcement officials to support investigations and prosecutions.

Given the sensitive nature of cases surrounding victims’ protection, USCIS implemented confidentiality safeguards for individuals with applications associated with Violence Against Women Act (VAWA) self-petitions or T or U nonimmigrant petitions.

For more information on the Department’s efforts to combat human trafficking, visit www.dhs.gov/humantrafficking or www.uscis.gov/humantrafficking . In an emergency, call 911. To report human trafficking call the ICE tip line at 1-866-347-2423, and for related questions or to speak to a non-governmental representative, call the National Human Trafficking Resource Center at 1-888-373-7888”

General Visa Ineligibility

Then there is what I call the general visa ineligibilities, which are thrown out the door in adoptions. The focus I am taking on this is how agencies and orphanages lie about child’s condition and how that should be grounds for ineligibility for points 1A and 4A, B (safety and welfare of others and likely to become a public charge).

http://www.travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html#1

“(1) Health-related grounds.-

(A) In general.-Any alien
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(4) Public charge.-

(A) In general.-Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

(B) Factors to be taken into account.-
(i) In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support ”

So, let’s sum all of this up:

If you JUST need medical help and are a child, you can get that medical visa and be cared for by a US citizen while they bond to you and then you can get adopted even though you have family in your original country who sent you abroad solely because they could not afford your medical care.

If you live in an orphanage, you can become a tourist if an NGO “finds” you and then even if you are originally not eligible for adoption, you can be adopted to the US.

If you want to get a good education in the US, but are too old (over 16 for US standard or over 14 for some sending country standards)or for any other reason, you and your parents can lie about your age, agree to adoption, and then use your new AP for educational purposes.

IF you have some type of entertainment talent, you can get booked on an orphan tour and catch the eye of a PAP and possibly get yourself backdoor adopted.

If you can claim abuse and get noticed by this law firm, then you can get a special green card and get into the US.

If you were trafficked to the US you are not sent back, but granted a visa and citizenship as a reward for making yourself a victim or being a victim.

If an agency lied about the likelihood of you being on public welfare thus making you in theory ineligible for a visa, you still get to immigrate on an IR3 or IR4 visa, you get to stay and can be disrupted to US foster care.

If you smuggle yourself here and have a baby, you get deported and your baby goes into foster care.

If you were adopted here and your parents failed to get that piece of paper for citizenship and you commit a crime, you are deported.

If you are stolen from Guatemala (or any other country) but adopted, you get to/forced to stay but your original family doesn’t get to come here and you don’t get to go back there (see Anyeli Hernandez case here ).

Reunited adoptees that want to bring original family here to visit or live cannot get them visas to come here even if the adoptee is a US citizen.

Interestingly, if an adoptee could get himself or herself branded as legally trafficked, then he or she should be able to apply for the T or U visa for their biological family.

Maybe this is what is contributing to why adoption and trafficking cannot be used in the same sentence. The US government would have to allow all of the original family members in. Gasp!

Please share stories or links or information about visa anomalies that you have seen!

REFORM Puzzle Piece