Chapter 6 - Adjudication

A. Review and Independent Decision

The adjudicating officer must make an independent evaluation of the merits of the case. The officer who is adjudicating the suitability determination must be satisfied that proper care will be provided for the child.^[1] This evaluation is based on review of the application or combination filing, home study, background checks, and any other evidence the officer is aware of.

1. Home Study Review

Although a favorable home study is required to establish eligibility, it is not the end of the officer’s review. If there is reason to believe that a favorable home study was based on inadequate or erroneous evaluation of all of the facts, the officer must attempt to resolve these issues with the home study preparer, the prospective adoptive parent (PAP), and the state agency that reviewed the home study (if any). Issues that may need to be addressed include, but are not limited to, PAP or adult member of the household (AMH): criminal history, history of abuse or violence as an offender, disabilities, financial issues, and inappropriate behavior when interacting with USCIS that raises questions about the PAP’s suitability.

2. Background Check Review

All background checks on the PAP and AMHs must be completed and current before the officer can make a final decision.^[2] The officer must follow all required procedures regarding biometrics. USCIS issues a Request for Evidence (RFE) if:

• A PAP’s or AMH’s fingerprints are expired (and they already received their one-time, no fee fingerprints refresh); or

• An additional person needs to provide biometrics.

The officer must check the PAP’s and AMH’s responses from the home study on the questions on criminal history and history of abuse or violence as an offender against the background checks. USCIS may deny the suitability application if the PAP or AMH failed to disclose an arrest, conviction, or history of substance, sexual abuse, child abuse, or domestic violence to the agency conducting the home study and to USCIS.

B. USCIS Actions and Decisions

1. Communication

USCIS sends communication of its actions and decisions directly to the PAP for all case-related matters.

If a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) or Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) is completed by an attorney or by an accredited representative,^[3] the officer also sends a copy of USCIS decision notices to such authorized attorney or accredited representative.^[4] A person representing an organization such as non-profit or charitable organization must first be accredited by the Board of Immigration Appeals. In general, adoption agencies do not qualify as Accredited Representatives.

Information about the particulars of any case can only be given to the PAP, or to an attorney or accredited representative with a Form G-28 or Form G-28I on file. The Privacy Act forbids disclosing information about the case to anyone else unless the PAP has signed a written consent^[5] to the disclosure or such disclosure is not prohibited by law.^[6]

2. Requests for Evidence and Notices of Intent to Deny

The officer issues an RFE or Notice of Intent to Deny (NOID), as appropriate, if any of the required home study elements or other required evidence is missing or deficient.^[7]

USCIS may issue an RFE if a PAP or AMH is on probation, parole, supervised release, or other similar arrangement for any conviction, or if criminal charges are pending or adjudication is deferred.^[8] USCIS does not make a favorable suitability determination if there are pending criminal charges or deferred decisions against the PAP or any AMH. If the person completes the period of probation, parole, supervised release, or other arrangement, resolves the pending or deferred criminal adjudication, and the PAP provides a favorable home study recommending that the person has been appropriately rehabilitated within the RFE response period, USCIS may consider the person to have been appropriately rehabilitated.^[9]

3. Approvals

If the officer approves the suitability application, the officer sends a notice of approval to the PAP and the PAP’s legal representative, if any.^[10]

4. Denials

The officer denies the case if:^[11]

• Any of the eligibility requirements are not met;^[12]

• The officer is not satisfied that the PAP will provide proper care to the child;^[13]

• The PAP or any AMH failed to disclose to the home study preparer or to USCIS, or concealed or misrepresented, any fact(s) about the PAP or any additional member of the household concerning the arrest, conviction, or history or substance abuse, sexual abuse, child abuse, or family violence, or any other criminal history as an offender;^[14]

• The PAP or any AMH failed to cooperate in having available child abuse registries checked; or^[15]

• The PAP or any AMH failed to disclose any prior home studies, whether completed or not, including those that did not favorably recommend for adoption or custodial care, the person(s) to whom the prior home study related.^[16]

If the officer cannot approve the suitability application, the officer must explain in writing the specific reasons for denial.^[17]

C. Revocations

USCIS may revoke an approved suitability application automatically or upon notice as described in corresponding regulations.^[18]

D. Appeals and Motions to Reopen or Reconsider

A PAP may file a Notice of Appeal or Motion (Form I-290B) to request that USCIS reopen or reconsider an adverse decision.^[19]

Footnotes

[^ 1] See 8 CFR 204.3(h)(2).

[^ 2] For information on submitting biometrics for the orphan process, see Chapter 2, Eligibility, Documentation, and Evidence (Orphan Process) [5 USCIS-PM B.2]. For information on submitting biometrics for the Hague process, see Chapter 3, Eligibility, Documentation, and Evidence (Hague Process) [5 USCIS-PM B.3]. For information on biometrics validity and updates, see Chapter 5, Action on Pending or Approved Suitability Determinations, Section E, Biometrics Validity and Updates [5 USCIS-PM B.5(E)].

[^ 3] See 8 CFR 292.2.

[^ 4] See 8 CFR 103.2(b)(19).

[^ 5] A PAP following the Hague Adoption Convention process may use the Form I-800, Supplement 1, Consent to Disclose Information (Supplement 1). USCIS does not have a disclosure form for the orphan process. A PAP following the orphan process who wishes to consent to the disclosure of information about the case may submit a signed, written waiver that specifies the information USCIS is explicitly authorized to release and to whom.

[^ 6] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a).

[^ 7] For more information on RFEs or NOIDs, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 8] See 8 CFR 204.311(l).

[^ 9] Although a favorable home study is required to establish suitability and eligibility, USCIS is not bound by the recommendation in the home study and makes the ultimate decision whether a PAP is suitable and eligible to adopt. See Section A, Review and Independent Decision [5 USCIS-PM B.6(A)].

[^ 10] See the Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petition (Form I-171H) or Notice of Action (Form I-797). See the Form I-600 Notice of Suitability Determination (Form I-171S). For more information on approvals, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 11] See 8 CFR 204.312(c). See 8 CFR 204.3(h).

[^ 12] See 8 CFR 204.3. See 8 CFR 204.3(h)(6). See 8 CFR 204 Subpart C. See 8 CFR 204.307.

[^ 13] See 8 CFR 204.312(c)(ii). See 8 CFR 204.3(h)(2). In order to help determine suitability, a home study is required. For Hague Adoption Convention cases, the PAP must submit the home study with the suitability application. For orphan cases, if the PAP does not submit the home study within 1 year of filing the suitability application, USCIS denies the case. See 8 CFR 204.3(h)(5).

[^ 14] A PAP cannot submit a new petition or application for reconsideration until a 1-year period has elapsed from a denial on this basis. See 8 CFR 204.309(a). See 8 CFR 204.3(h)(4). In Hague cases, the one-year bar also applies to a failure to disclose all prior home studies.  

[^ 15] USCIS denies any new application or petition filed within a year of such denial. See 8 CFR 204.311. See 8 CFR 204.3(h)(4).

[^ 16] See 8 CFR 204.311.

[^ 17] See 8 CFR 103.3. For more information on denials, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 18] See 8 CFR 204.312(e)(2)(i). See 8 CFR 204.3(h)(14). See 8 CFR 205.1. See 8 CFR 205.2. For more information on revocation, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 19] For more information, see Volume 1, General Policies and Procedures, Part F, Motions and Appeals [1 USCIS-PM F]. See 8 CFR 204.314.