August 6, 2010, the U.S. Embassy in Nepal announced it was suspending the processing of new orphan cases involving Nepali children "claimed to have been abandoned". On August 27, 2010, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled Nepal Initiative - Filling Form I-600.
Essentially, the USCIS made a determination to indefinitely suspend the processing of abandonment cases due to the reports from the U.S. Embassy in Kathmandu, Nepal that the embassy staff have encountered inconsistent and unreliable documentation regarding the reported abandonment of Nepali children for adoption. The suspension is reportedly limited to those cases where orphan status is claimed by way of abandonment.
This is troubling in so many different ways:
1. The suspension on abandonment cases are reportedly due to the inconsistent and unreliable documentation.
2. The USCIS/DOS has a statutory duty to process I-600 petitions. By categorically suspending the filing of I-600 petitions for abandonment cases they are affectively violating their statutory duty to process the petition.
3. Is the real reason USCIS/DOS is suspending the processing of abandonment cases due to the fact that our Embassy has insufficient resources to investigate each case?
We are not sure what this means as there have not been reports of falsified documentation or evidence of fraud on the part of governmental officials or orphanage staff.
Previously there was one case wherein it was determined that the biological parents came back after a significant period of time and requested the return of the children. That information was not passed onto the Ministry or the adoption agency assisting the family. Other than this case, we have not heard reports specifically identifying fraudulent practices. We do not know if the Embassy is stating that unreliable and inconsistent documentation means fraudulent documentation. One would think that if there was evidence of a system of fraud the Embassy would have identified it.
The obvious point here is that even if there was one or more cases wherein the I-604 investigation revealed fraudulent documentation, that is not a reason to "close the window" on the filing of other abandonment cases. It is fairly common that there is a presumption with Embassy staff that anyone applying for a visa to the USA is being fraudulent. That is common in employment visa application and tourist visa applications. For this reason you see that it is very difficult for a person to receive a tourist visa to come to the USA for a visit. The officers at the Embassy believe that the person will not return to their home country and will over stay their visit into the USA.
Regardless of this pre-judgment that visa applications are fraudulent U.S. Embassies around the world continue to accept the filing of visa applications. Furthermore, regardless of actual findings of fraud on visa applications the Embassies continue to receive and process visa applications.
The USCIS or Department of State (DOS) has not "closed the window" to those applications as they have now done in Nepal for visa applications for abandoned children. The bottom line here is that the U.S. Embassy has pre-judged all abandonment cases as being fraudulent. This is fundamentally wrong.
The system is in place for all visa applications, including I-600 petitions for abandonment cases, that if the documentation does not appear to be valid on its face that an I-604 investigation can take place. Based on the investigation the officer can either approve or deny the visa. Here the U.S. Embassy has pre-judged each I-600 petition wherein orphan status is claimed due to abandonment by refusing to process new abandonment cases. These new cases are not even provided the opportunity to be investigated. Again, prejudgment is fundamentally and legally wrong.
The Immigration and Nationality Act (INA), Section 201 (b) sets forth the categories by which orphan classification is obtained. According to the INA, a child must meet the following two conditions in order to be considered an orphan:
• The child must have no parents or
• The child has a sole or surviving parent who is unable to care for the child and has, in writing, irrevocably released the child for emigration and adoption.
In general, a child would be considered to have no parents if both parents are determined to have died, disappeared, deserted, abandoned or have been lost or separated from the child. Abandonment requires that the birth parents give up all parental rights, obligations and claims to the child, as well as all control over and possession of the child.
By electing to suspend the filing of I-600 petitions for "abandonment" cases the Embassy has effectively changed the statute by removing it from the beneficiary class.
An obvious question is can the Nepali children fall within one of the other statutory beneficiary classes of orphan status?
• Desertion by parents means that the parents have willfully forsaken their child and have refused to carry out their parental rights and obligations, and that; as a result, the child has become a ward of a competent authority in accordance with the laws of Nepal.
• Separation is virtually identical to desertion. Here there is the involuntary severance of the child from his or her parents by action of a competent authority for good cause.
• Disappearance is when both parents have unaccountably and inexplicably passed out of the child's life, their whereabouts are unknown; there is no reasonable hope of their reappearance; and there has been a reasonable effort to locate them as determined by competent authority in Nepal.
What will the Embassy do when presented with an I-600 filing for a child whose orphan status is derived from one of the other statutory listed classes such as disappearance, separation, death, or desertion? We are trying to find this out.
If so, then make a request for additional staffing. Do not categorically deny abandonment cases.
The various agencies working in Nepal are in consultation with each other in an effort to find a solution to the problem. We have requested that all efforts be made in Nepal to locate the birth parent or parents of the children in order to obtain lawful, irrevocable releases in writing. Of course this will be difficult. Discussions have included the possibility of legal action and congressional help in requiring USCIS/DOS to perform their statutory duties.
It is difficult to estimate how long it will take to find a solution to the current crisis in Nepal or whether a crisis will be found. For those families in our program that would like to consider our alternative programs please call us so we can discuss what options are available.
Thanks for your continued patience. There are so many children in Nepal that are in need of permanent families and it is sad to see that USCIS/DOS has taken a position to deny these children, without the processing of the I-600 petitions, the chance of a family.
John Meske
Executive Director
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