INTERNATIONAL ADOPTION

VIETNAM

March 2001

WARNING REGARDING SEVERE ACUTE RESPIRATORY SYNDROME (SARS) April 4, 2003: The Centers for Disease Control and Prevention (CDC) recommends U.S. citizens defer elective, non-emergency travel to areas with a large number of SARS cases, including Hanoi, Vietnam, Mainland China, Singapore, and Hong Kong. U.S. citizens present in or planning travel to these areas should monitor closely the Web site of the Centers for Disease Control and Prevention at http://www.cdc.gov/ncidod/sars and Guidelines about SARS for International Adoptees & their Families at http://www.cdc.gov/ncidod/sars/adoption.htm for the latest information on SARS. Also see the Department of State's Fact Sheet on SARS at http://www.travel.state.gov/travel/sars_notice.html.

U.S. citizens should consult the Public Announcement Regarding SARS at http://www.travel.state.gov/travel/sars_notice.html for further information on travel to Vietnam.

DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.

Prospective adoptive parents are advised to fully research any adoption agency or facilitator that they plan to use for adoption services. For U.S. based agencies, it is suggested that prospective adoptive parents contact the Better Business Bureau and licensing office of the Department of Health and Family Services in the state where the agency is located.

Irregularities in the methods used to identify children for adoption in Vietnam make it difficult to classify some children as orphans under U.S. immigration law. Several instances of payment to birth mothers to induce them to give up a child have been documented. This is clearly prohibited under U.S. immigration law. Additionally, Vietnam recognizes common-law marriages and some field investigations have established that a birth mother did not meet the definition of "sole parent" as defined by U.S. immigration law, since she was living with the biological father of the child, or was married but had made false statements about her civil status. As a result of these irregularities, you are advised that if you proceed to finalize an adoption of a Vietnamese child you wish to immigrate as an orphan, you should be prepared for a lengthy wait before a thorough investigation is concluded. Further, if it is uncovered that the child does not meet the orphan definition under U.S. law, your orphan petition to classify the orphan as an immediate relative (I-600) will be denied by the Bureau of Citizenship and Immigration Services in the Department of Homeland Security.

AVAILABILITY OF VIETNAMESE CHILDREN FOR ADOPTION

The total number of visas issued to Vietnamese orphans adopted by U.S. citizens has steadily increased since the United States and Vietnam normalized relations in 1995.

REGULATIONS

U.S. citizens may legally adopt in Vietnam. All adoptions must be initially submitted to the adopted child's home province. In cases where the adopting parents have not yet identified a child for adoption, the adoption request must be submitted directly to the Ministry of Justice in Hanoi. The Ministry will assist in locating a suitable child and then refer the case to the provincial Justice Department of that child's home province. Both the provincial Public Security Bureau and the provincial People's Committee must also review and approve the adoption following its review by the provincial Justice Department. Final approval (Decision on Adoption) is issued by the People's Committee. The child is formally handed over to the adopting parents in a ceremony at the provincial Justice Department office, in accordance with the Vietnamese Office of the President's November 30, 1994 Decree No. 184-CP Regarding Procedures for Marriages, Adoption and Patronage for Vietnamese Children by Foreign Nationals. U.S. citizens can adopt orphaned children or from private individuals but all adoptions must be processed through a government facility, i.e. from an orphanage or a hospital.

The Department of State encourages Americans to determine if a particular child is an orphan according to U.S. immigration law and regulations before proceeding with an adoption. A detailed description of the orphan definition issued by BCIS can be found on BCIS's website at http://www.uscis.gov.

According to the Vietnamese "Law on Marriage and the Family" adoptive parents must be at least 20 years older than the children they wish to adopt. Children up to and including the age of 15 can be adopted. If over nine years of age, a child must consent in writing to his or her adoption under Vietnamese law.

Vietnamese law does not define "orphaned" or "abandoned". Children with two living parents are sometimes placed in orphanages by families who claim not to have the economic wherewithal to support their offspring. The decision to accept such children rests chiefly with the orphanage director, and often depends whether space is available in the orphanage. (Please see "ISSUES" below.)

DOCUMENTATION

Vietnamese documents are not generally reliable and regulations regarding civil documentation are frequently not followed. Births are to be registered within 30 days, but often are not, especially in the countryside. Late registration is legal. Births are supposed to be registered with the local People's Committee. The birth certificate format is standardized, but non-standard "birth certificates" made by the orphanages themselves are sometimes submitted with orphan cases. These are inevitably late registered. All abandoned children are supposed to have their births registered by the local People's Committee.

The death certificate format is not standardized. Generally, any pre-printed form is acceptable, and any death certificate should be on such a form. At a minimum, the death certificate should contain the name of the deceased, cause of death, date of death, and the deceased's date of birth or age at death. Vietnamese death certificates are unusually vague about cause of death, "sickness" and "disease" being the two most common causes given. All deaths are to be registered within 24 hours with the local People's Committee, but late registration is legal.

Document fraud is widespread in Vietnam. Fraud is not limited to fake documents produced by other than the authorized civil authority. A document may be legal, per se, in that it has been issued by the proper civil authority in the correct format, but be fraudulent in the sense that it contains false information. With the exception of birth certificates, the format of official documents varies widely from province to province.

PROCEDURE

When an adoption agency receives a request from a client to identify a child available for adoption, the agency contacts an orphanage (generally an orphanage it supports). When an agency has identified a child acceptable to the adopting parent(s), the agency asks the orphanage to release the child for foreign adoption.

If one was not already on file, the orphanage obtains an unconditional release for foreign adoption from the child's parents or guardian or from whoever has legal custody of the child. The orphanage director then signs a document stating that the orphanage consents to release the child, either to the adoptive parents or their agents. The adoptive parents' names should be specified in the Vietnamese version of this document.

After the agency or adopting parents have obtained all the documents required for the adoption, the case is presented to the provincial Justice Department. The Justice Department coordinates with the local Public Security Bureau (police) to review the application. The Public Security Bureau must investigate the proposed adoption within 30 days from the date of the initial request from the Justice Department. This limit can be extended by15 days if additional investigation is required. Following its review of the case, the Justice Department gives the completed paperwork to the provincial People's Committee for review, together with its recommendation. The People's Committee decides within 60 days to accept or reject the application for adoption. If further investigation of the case is needed, the People's Committee can delay its decision an additional 30 days. Please note that, in actual practice, these general time periods may vary greatly from province to province.
Once the provincial People's Committee approves the adoption, the child is formally relinquished in a "giving and receiving" ceremony held at the provincial Justice Department attended by at least one of the adopting parents, and by representatives of the orphanage, the People's Committee and the Justice Department. A "Giving and Receiving" document signed by the Justice Department is issued and the adoption is recorded in an adoption registration book.

U.S. IMMIGRATION REQUIREMENTS

WHO IS AN "ORPHAN," AND WHAT IS "UNCONDITIONAL ABANDONMENT?"

Section 101(B)(1)(F) of the Immigration and Nationality Act (INA) is the legal provision under which Americans may bring children adopted overseas to the United States. The law states that (a) an eligible child must be under the age of sixteen at the time that the adopting parents file an immigrant visa petition on the child's behalf; and (b) the child must not have 1) living parents or 2) have only one living parent who is incapable of providing for the child under local living standards; and (c) the child must be irrevocably released for emigration and adoption. A child with two living parents can meet the definition of an orphan only through the disappearance of, abandonment or desertion by, or separation or loss from, both parents.

Abandonment of a child must be unconditional. Agreeing to give a child up for adoption by a specific person does not constitute unconditional abandonment, since the parents are relinquishing custody with the understanding that the child will be cared for and adopted by a particular individual. The Board of Immigration Appeals of the BCIS has ruled that a child with one surviving parent who has not been abandoned may qualify for orphan status only if the sole surviving parent is destitute by local standards or is otherwise physically or mentally unable to care for the child. This means that the child may not be classified as an orphan unless the sole or surviving parent cannot provide the child with the nourishment and shelter necessary for subsistence consistent with the local standards of the child's place of residence. The parent must also irrevocably release the child for emigration and adoption.

It is important to note that Vietnamese courts do not apply U.S. legal standards when classifying a child as an orphan or abandoned. Many children in orphanages in Vietnam may not meet the standard of U.S. law to be eligible for adoption. Prospective adoptive parents should take care to investigate the status of the child prior to planning an adoption and require that the orphanage or adoption agent provide legal evidence that the child is in its custody and that the child is indeed abandoned or orphaned. Despite a successfully completed Vietnamese adoption, if further investigation finds that the child is not legally orphaned or abandoned, the child will not be eligible for a visa to immigrate to the United States.

U.S. IMMIGRATION PROCEDURES

Prospective adoptive parents should be aware that whether they identify a child prior to leaving the U.S. or locate a child on a trip to Vietnam, certain time consuming procedures must be completed before an immigrant visa can be issued by the U.S. Embassy.

Prospective parents must file Form I-600A, the application for advance processing of orphan petition or Form I-600 (adoption petition) with the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS) district office having jurisdiction over their place of residence.

The Form I-600A (the application for advance processing of an orphan petition) is filed when the prospective adoptive parents have not yet identified a child for adoption. The Form I-600 (adoption petition) is filed if a specific child has been identified for adoption.

I-600A APPLICATION FOR ADVANCE PROCESSING OF ORPHAN PETITION

Form I-600A is used when the prospective parents are seeking to adopt a child, but have not identified the child they want to adopt. Filing an I-600A form at an BCIS office in the United States and receiving approval from an BCIS officer in the U.S prior to travelling to Vietnam is often a means of expediting the overall process. .

When filing Form I-600A, the prospective parents must show that they have complied with the pre-adoption requirements of their home state. The BCIS office (usually the district office in which Form I-600A was filed) must determine whether federal and state pre-adoption legal requirements have been met.

If the adopting parents have an approved I-600 only, they must file form I-600 at the BCIS office in Ho Chi Minh City. Both parents must sign the form in front of the consular officer. Note: there are no provisions in BCIS regulations allowing consular officers to accept I-600 petitions signed by agents with powers of attorney. Consequently, even if an agent is physically accompanying the child to the U.S., the adoptive parents must sign the I-600 petition after the child has been identified.

FORM I-600 ADOPTION PETITION

The Form I-600 is required in all cases involving an application to bring an abandoned or orphaned child to the United States. It may be filed at any BCIS office in the United States.

If the adoptive parents, who may also be referred to as the "petitioner," or "petitioners," choose to file Form I-600 at the American Consulate General in Ho chi Minh City, it must be preceded by an BCIS-approved Form I-600A. Moreover, both adopting parents must sign Form I-600; at least one of the adopting parents must sign the petition in front of the consular officer.

The I-600A and I-600 forms are usually accompanied by:

• a home study of the adopting parents by a recognized social agency in their state of residence;
• evidence of compliance with any state pre-adoption conditions;
• a fingerprint check by the BCIS of the adopting parents;
• certified copies of the prospective adoptive parents' birth certificates in the U.S. or other evidence of U.S. citizenship;
• a certified copy of the adoptive parents' marriage certificate (if applicable);
• proof of termination of any previous marriages in the form of certified copies of death certificates or divorce decrees (if applicable).

  Once the BCIS branch office has approved the I-600A or I-600 petition, they will cable official notice of approval to the Consular Section (Ho Chi Minh City). In response to the cabled notice of approval, the Consular Section will send prospective adoptive parents a letter acknowledging receipt of the cable and this Adoptions Circular.

  Adopting families will receive more detailed instructions during the visa application process. However, at a minimum, the following Vietnamese documents should accompany an I-600 petition:

  • Child's birth certificate (preferably in standard format, signed by People's Committee representative).
  • Death certificate(s) of parent(s), on a pre-printed form and signed by a People's Committee representative.
  • Release from sole or surviving parent or guardian and statement/evidence of inability to provide for the child.
  • An explanation of how the child became an orphan. In cases of children abandoned at or shortly after birth, this can often be satisfied with a combination of hospital and orphanage records

Vietnamese orphan visa cases are processed by the consular officers of the U.S. Consulate General in Ho Chi Minh City. When the adopter or adoption agency has evidence of an approved I-600 petition and all required documents, the adopter and child may come to the Consulate General at 4 Le Duan Street between 8:00 and 11:00 a.m. for the visa interview. If the child is found qualified, a visa is issued the next working day at 4:00 p.m.

ISSUES

Vietnam has a rapidly-growing population and a per capita income of about $200 a year. In these circumstances, families may be tempted to release their children inappropriately for adoption.

The Vietnamese appear to have a more elastic definition than the U.S. of what constitutes an "orphaned" or "abandoned" child. Children are sometimes relinquished to orphanages by two living, healthy parents who claim they are not economically able to care for the child.

At present, Vietnamese law requires foreigners adopting Vietnamese children to adopt a child from a government facility, such as an orphanage or hospital. In many cases in which a child has been adopted directly from a natural parent or parents, he is not eligible under U.S. immigration law to receive an immigrant visa. Therefore, the Consulate would not encourage prospective adoptive parents to attempt such direct adoptions.

Although U.S. citizens are not required by Vietnamese law to work through an adoption agency, the Vietnamese bureaucracy is difficult to navigate, and the required paperwork may take months to complete. For this reason, the Consulate and the Vietnamese government both recommend that families wishing to adopt a child from Vietnam use the services of an adoption agency having experience in Vietnam. Agencies are able to locate an orphan and complete the necessary paperwork on their clients' behalf up to the last stages of the process. The Consulate cannot, however, recommend a specific agency.

U.S. ADOPTION PROCEDURES

Comprehensive information regarding international adoptions by U.S. citizens is available through the State Department's Consular Affairs Bureau and through the U.S. Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS).

Office of Children's Issues
SA-29, 4th Floor
U.S. Department of State
Washington, DC 20520
Tel: 1-888-407-4747

State Department home page: http://travel.state.gov

The BCIS pamphlet entitled The Immigration of Adopted and Prospective Adoptive Children (M-249Y, Revised, 1990) includes a checklist on orphan petition procedures. For a copy of this pamphlet, please contact the U.S. Consulate in Ho Chi Minh City or the Office of Children's Issues at the State Department.

Ask Immigration line 1-800-375-5283
BCIS Forms line 1-800-870-3676

BCIS home page: http://www.uscis.gov

General recorded information about visa procedures is also available from the Department of State's Visa Office at (202) 663-1225.

For U.S. citizens who adopt in Vietnam, BCIS notice of approval is sent from the BCIS Office in Ho Chi Minh City to the IV Unit of the Consular Section of the U.S. Consulate in Ho Chi Minh City. If an I-600A was filed in the U.S., an I-600 may be filed with the BCIS Office in Ho Chi Minh City once a child has been identified. Once the I-600 has been approved, the child is eligible for an immigrant visa interview at the Consulate.

Questions regarding procedures for filing these forms should be directed to the BCIS Office in Ho Chi Minh City.

Bureau of Citizenship and Immigration Services in the Department of Homeland Security
Saigon Centre, 9th Floor
65 Le Loi Street
Tel: (84-8) 821-6237, (84-8) 821-6238,
Fax: (84-8) 821-6241

American citizens seeking to adopt a child in Vietnam should feel free to contact the American Citizen Services (ACS) unit of the U.S. Consulate General in Ho Chi Minh City if they encounter difficulties in completing Vietnamese government procedures or have other serious problems.

Upon arrival in Vietnam, U.S. adoptive parents should also register at the American Consulate, Consular Section, American Citizens Services. The Consulate will be able to provide information about any outstanding travel advisories and to provide other information about Vietnam, including lists of physicians, attorneys, interpreters and translators.

QUESTIONS: Specific questions regarding adoptions in Vietnam may be addressed to the Consular Section of the U.S. Embassy or Consulate. You may also contact the Office of Children's Issues with specific adoption questions.

Recorded information concerning significant changes in adoption procedures is available 24 hours a day at: 1-888-407-4747. If the country you are interested in is not listed, procedures have not significantly changed. Information on immigrant visas is available from the State Department's Visa Office, at (202) 663-1225. This 24 hour automated system includes options to speak with consular officers during business hours for questions not answered in the recorded material. Application forms and petitions for immigrant visas are available from the U.S. Bureau of Citizenship and Immigration Services in the Department of Homeland Security, the nearest office of which is listed in the federal pages of your telephone book, under U.S. Department of Justice.

In addition, the State Department publishes Consular Information Sheets and Travel Warnings. Consular Information Sheets are available for every country in the world, providing information such as the location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations are sufficiently serious that the State Department recommends U.S. citizens avoid traveling to a country, a Travel Warning is issued. In addition, this information is also available at any of the 13 regional passport agencies, field offices of the U.S. Department of Commerce, and U.S. Embassies and Consulates abroad.

CONTACTING THE U.S. CONSULATE IN HO CHI MINH CITY

While in Vietnam, inquires should be addressed to:
U.S. Consulate General
Immigrant Visa Unit
#4 Le Duan St.,
District 1,
Ho Chi Minh City, Vietnam
Tel: (84)(8) 822-9433
Fax: (84)(8) 822-0938

U.S. Mailing Address:
U.S. ConGen
PSC 461
P.O. Box 5400
FPO AP 96521-0002

Home page: http://usembassy.state.gov/vietnam/

CONTACTING THE VIETNAMESE EMBASSY IN THE U.S.

Embassy of Vietnam
1233 20th Street, N.W.
Suite 400
Washington, D.C. 20036
Tel: (202) 861-2293 or (202) 861-0694

Home page: http://www.vietnamembassy-usa.org/

CONCLUSION

The American Embassy and the Department of State stand ready to assist adoptive parents, within the limits of our authority. Adoptive parents are encouraged to provide us with any information about their experiences in adopting children from Vietnam. Such information is very helpful to us in ensuring the validity and usefulness in this brochure.