FACE Act

If you’re interested in additional information on the FACE Act, here is a letter from the Founder and President of EACH:

Open Letter to the Adoption Community

July 31, 2009

As an adoptive Mother, the President and Founder of Equality for Adopted Children, and a former senior legislative aide on Capitol Hill, I would like to address some questions that have been raised about the newly introduced Foreign Adopted Children Equality Act (FACE Act).  These questions have caused some to suggest the bill should not be supported.  This is unfortunate, because the FACE Act will bring significant improvement to the adoption process and will, if signed into law, provide equality for our internationally adopted children as well as save adoptive parent’s time, money and regulatory hurdles.  I know because I was deeply involved with its predecessor. 

The FACE Act was introduced to amend and improve upon the Child Citizenship Act of 2000 (CCA), a bill introduced by Senator Don Nickles and Senator Mary Landrieu.  At the time the CCA was introduced and passed, I was Legislative Counsel to Senator Nickles and was responsible for shepherding the CCA through Congress.  The bill was conceived after my husband and I adopted three siblings from Eastern Europe and I discovered that despite the fact that my husband and I were both American citizens, our citizenship did not transfer to our foreign adopted children as it would have if they had been born to us abroad.  As a lawyer I found this disturbing because I knew that under adoption law, once a child is adopted, that child is entitled to all the same rights, duties and responsibilities as a biological child.  The law says they are to be treated as if they were the “natural issue” of the adoptive parents.  CCA was drafted to remove discrepancies between the treatment of children born abroad versus children adopted abroad to U.S. citizens. In short, to bring adoption practice into line with the law and in the process ease a number of procedural burdens unnecessarily borne by adoptive parents.

The CCA began the process of addressing a primary inequality:  If an American gives birth to a child overseas the child is considered a citizen from birth and is given a U.S. passport and a Consular Report of Birth (which acts as the child’s birth certificate). The child is allowed to enter the United States as a citizen with documentary proof of citizenship.  In other words, the child does not have to go through an immigration process.  Not so for an adopted child who must obtain an immigrant visa, go through a very different (and more costly and cumbersome) process even though they are every bit as much the son or daughter of American citizens. Unfortunately, the United States is one of the few developed countries that still treat internationally adopted children of their citizens as immigrants and force adoptive families to go through an immigration process to bring their children home.

U.S. Court decisions have established adoption laws that recognize that adopted children are entitled to full equality of treatment as biological children.  Yet despite the passage of CCA, not all inequalities have been addressed. The FACE Act would align U.S. adoption laws with U.S. statutes by recognizing all children of U.S. citizens as equal, whether biological or adopted.  The FACE Act would rectify inequities both past and present.  Regrettably, as I know is often the case with legislation, some have misunderstood the contents of the legislation. 

Protecting Safeguards and Meaningful Procedures

Some allege that by removing adopted children from the immigration process the bill removes the safeguards that protect adopted children, their biological families and their adoptive families.  This is a completely incorrect assertion.  This bill absolutely upholds current requirements in regard to approval of parents to adopt a foreign born child, preserves current safeguards, and maintains current regulations related to intercountry adoption.  Here’s how:

• Upholding Requirements and Procedures. 
  • The FACE Act continues to require that before citizenship attaches to an internationally adopted child, adoptive parents must be approved by the U.S. government as fit to adopt, just as under current law. 
  • Adoptive parents will still need to meet the same requirements currently submitted for approval of an I-600A or I-800A including an approved home study, criminal clearances and all other documents that are now part of the approval process.
• Preservation and Maintenance of Safeguards and Investigations. 
  • The FACE Act continues to uphold and require all immigration safeguards currently in place to ensure that a child has been adopted legally without fraud or trafficking. 
  • Conditions required to fulfill an I-600 or I-800 form will continue unchanged including an orphan investigation as mandated under current law. 
  • The U.S. government will continue to affirmatively determine that a child has been adopted appropriately and that the child meets the adoption requirements of U.S. adoption law for international adoptions. 
  • A welcome change in the FACE act would be the elimination of the paperwork, procedures and costs required to file for an immigration visa after an adoption has been completed and the child has been approved by the U.S. government as having complied with U.S. adoption law governing international adoption. 

Put simply, American adoptive parents abroad would take their documentation of a legal and appropriate adoption and follow the same process as American biological parents who gave birth abroad.  The entire process would be simplified and standardized for both sets of parents and most importantly, would apply equal treatment to the children as established in U.S. adoption law.  Time and travel costs for adoptive parents would be reduced lowering further the barriers to international adoption.

The FACE Act makes no changes to current regulations related to intercountry adoption.  Current adoption law language does not detail what must be done to approve a family to adopt or what paperwork must be filed to get an immigration visa. Rather, the details are found in the regulations implementing the law.  This bill and subsequent regulations would do the same. The FACE Act merely sets the parameters of how the law would be implemented and the subsequent regulations would provide the specifics of how it would be implemented.

Establishing Equality for All and Respecting Heritage

Another unfortunate misunderstanding of the FACE Act arises from a section of the bill that amends Section 301 of the Immigration and Nationality Act (INA), which defines who is a U.S. citizen at birth.  Currently, this section of law provides automatic U.S. citizenship to children born to U.S. citizens abroad, but not to those adopted abroad by U.S. citizens.  The practical effect is that under the status of an immigrant instead of a citizen at birth, the adopted child could never be President of the United States even though a child born in the same foreign country at the same time to American citizens could. Amending this section of law to include our internationally adopted children as citizens from birth will finally correct one of the major remaining inequalities that our children suffer under federal law.

Some have erroneously concluded that this provision will strip adopted children of their birth country’s citizenship and erase their birth history. In actuality, the FACE Act will help support adoptees who seek to learn more of their original birth history and reconnect with their country of origin.  The FACE Act includes provisions that state:  

• “It is the sense of Congress that the government of each foreign country from which children are adopted by citizens of the United States should provide documentation of the adopted children’s original birth history to the adoptive family in accordance with the laws of such country.”
• “Nothing in this Act, or in any amendment made by this Act, may be construed to abrogate any citizenship rights provided to an adoptee by the adoptee’s country of origin, or nullify the facts of the adoptee’s birth history.”

Granting of citizenship from birth cannot eliminate the fact of where a child was born, or to whom that child was born, or deprive them of their original citizenship rights any more than what occurs now when U.S. citizenship is granted to them under the CCA. 

To the extent a foreign country allows dual citizenship and the privileges that accompany that citizenship, that child will always have those privileges as a citizen of that country in the eyes of that country.   No legislation passed by the U.S. Congress can change citizenship laws of other countries.  If a country chooses to negate the citizenship rights of a child born in that country because they become a citizen of the United States, there is no law that the U.S. Congress can pass to rectify that decision.

Further, although Congress cannot pass laws ordering other countries to provide original birth documentation to adoptive families or to change their citizenship laws, these provisions mark significant steps towards establishing U.S. policy in these regards and would strongly encourage countries from which children are adopted by American citizens to provide such documentation and maintain such rights.

Protecting U.S. Citizenship and Preventing Family Separation

The FACE Act also improves the current citizenship process for international adoptees with a provision that rectifies the damage that is done when adoptive parents fail to take the necessary steps under past and current law to acquire U.S. citizenship for their child.  Prior to the CCA, internationally adopted children had to go through a naturalization process to attain citizenship.  Many parents wrongly assumed that their adopted child was a citizen because they themselves were citizens.  Unfortunately, this was not the case and there are many adult adoptees who found out much later in life that they are not citizens. 

Even after the CCA was passed, the problem remains due to the way the law is implemented.  Currently, only adopted children who arrive on IR3 visas (where both parents, if married, saw the child during the adoption process) receive automatic U.S. citizenship upon entry into the United States.  Adopted children who arrive on IR4 visas (where only one parent, if married, saw the child during the adoption process) must be readopted in their new home state (whether required by state law or not) before citizenship attaches.  If the child is not readopted prior to his or her 18^th birthday, they lose the right to automatic citizenship.

Over half the international adoptees enter this country on IR4 visas and risk losing their citizenship rights if their parents fail to readopt them.  Many children do not find out they are not citizens until they apply for a passport or for college scholarships.  A number of adoptees have been deported back to their country of origin due to minor crimes they have committed because their parents failed to take the necessary steps at the time to acquire citizenship status for their child.  The FACE Act rectifies this for all future international adoptees by conferring citizenship upon completion of the adoption and the U.S. determination that the child was adopted according to law.  Citizenship is conferred with no further action required of the adoptive parents.  This is a significant improvement over current law and will eliminate the tragic stories of adoptees deported to their country of origin with no knowledge of their original language, no support structure and no ability to return to the United States. 

For deported adoptees, The FACE Act allows these adoptees to file for and receive U.S. citizenship if U.S. citizens adopted them under the age of 18. 

In summary, the changes made by the FACE Act are significant but easily implemented.  The FACE Act would:

• Remove internationally adopted children of American citizens from the immigration process saving time, money and, for many, travel costs;
• Confer U.S. citizenship upon internationally adopted children immediately upon completion of all the necessary steps without requiring readoption within the U.S.;
• Improve upon the current system by encouraging foreign countries to provide original birth documentation; and
• Provide the added benefit of making our internationally adopted children eligible to run for President.

The sponsors of the FACE Act – Senator Mary Landrieu, Senator Jim Inhofe (S.1359) and Representative Diane Watson and Representative John Boozman (H.R. 3110) are great friends and supporters of the adoption community and have crafted a bill that will provide equality under the law for our internationally adopted children and allow them to benefit in all ways from full American citizenship.

In closing, I recommend that all read the relatively short FACE Act bill in its entirety.  It can be found here.     In addition, I invite you to read a detailed section by section explanation of the bill as well as answers to Frequently Asked Questions that can be found here.  Once you do so, I believe, like me, you will find this bill worthy of your wholehearted support.

For the sake of our internationally adopted children,

McLane Layton
President, EACH

July 31, 2009 Posted by Oscar and Etta's mom | Adoption | 4 Comments