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Monday 22nd of May 2017

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Post Adoption

Information for families who have already adopted a child from China.

Parents Work Together to Help Adopted Chinese Girls find their Biological Parents

Several adoptive parents, all of whom adopted children from the same orphanage in the Guangdong Province, are working to develop a new approach to birth parent searching called Orphanage Centric Search for Chinese Birth Parents (OCS CBP). These parents believe their searches will likely be more successful if they work as a team to share information rather than continuing to work in isolation. The adoptive parents have recruited a team of advisors who are experts in Chinese adoption to provide guidance during this year-long project. The adoptive parents plan to launch this project next month if they can raise the needed funding. All sponsors will receive access to the OCS CBP project blog and can follow the progress made by the birth parent search team. Sponsors who provide specified levels of financial support will also receive other benefits including a lesson learned and best practices report, guide to search for Chinese birth parents, and various levels of consulting support to launch their own orphanage-centric search (OCS) projects in the future. To learn more about this project click on the following link:http://www.rockethub.com/projects/33268-help-adopted-girls-find-their-biological-parents

Why Your Foreign-Born Adopted Child Should Have Proof of U.S. Citizenship, How to Get This Proof and Related Issues

As a result of the Child Citizenship Act of 2000 (CCA), many foreign born children by adoption who reside in the U.S. have or will become U.S. citizens under the CCA either when they enter the U.S. or when they are readopted or their adoption finalized in the U.S.1, 1b

1. WHO IS ELIGIBLE FOR CITIZENSHIP UNDER THE CCA?

The Child Citizenship Act of 2000 (CCA) provides for the "automatic" acquisition, that is acquisition as a matter of law, of U.S. citizenship to many foreign born children (adopted and not adopted) of U.S. citizens, provided that the following qualifications are met: 1) at least one parent of the child is a U.S. Citizen (USC), 2) the child is under the age of eighteen years when he or she enters the U.S.; or was under the age of 18 at the time of the effective date of the CCA (that is, February 27, 2001)2, 3) the child is residing in the U.S. in the legal and physical custody of the USC parent pursuant to a lawful admission for permanent residence1a, and; 4) if adopted, the adoption must be "final", under the laws of the foreign country and U.S. immigration.

2. WHAT DO THE VISA CLASSIFICATIONS IR3 AND IR4 MEAN?2a

Basically, if the adoption abroad was final under the laws of the foreign country and U.S. immigration, your child will be issued an "IR3" classified immigration visa ("Immediate Relative -- Orphan Adopted Abroad by USC.") to immigrate to the U.S.

However, if the adoption was not completed abroad or considered "final", either by the country abroad, or by U.S. immigration (because the child was not visited by the sole or both parents before or during the adoption abroad), the child will enter the U.S. on an "IR4" classified visa.2b ("Immediate Relative – Orphan to be Adopted in the U.S. by a USC."). If so, additional action will have to be taken for the child to become a USC.

If they otherwise qualify under the CCA, most children who immigrate on an "IR3" visa automatically become USC's when they enter the U.S. (but see notes 1a and 2). If they immigrated or will immigrate on an "IR4" visa, they will not become U.S. citizens until the adoption is finalized or readopted, as applicable, in a U.S. State court.

3. WHAT IF YOUR CHILD IS ADOPTED UNDER THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTIONS (HAGUE CONVENTION)?

As of April 1, 2008, the U.S. Intercountry Adoption Act of 2000 (IAA) and regulations issued as a result of the Hague Convention govern adoptions between the U.S. and other "Convention Countries" such as China, Guatemala, India, Mexico, Philippines and Thailand.3, 3a Amongst many things, adoptions under the Hague Convention will involve additional U.S. visa classifications, the "IH3", for adoptions that are final abroad and "IH4" for adoptions that will be completed in the U.S. Those that enter on an "IH4" visa, will not be USC's until the adoption is finalized in the U.S.

Of special note is that the requirement that the sole or both parents visit the child before or during the adoption abroad has been eliminated under the Hague Convention. Therefore, as long as the adoption is final abroad, an "IH3" visa should be issued.

4. Will your child automatically receive any official documentation of his or HER U.S. citizenship?

It depends. Basically, since January 2004, children who enter the United States on an "IR3", or now on an "IH3" visa as a result of the Hague Convention, and who otherwise qualify under the CCA, will receive a Certificate of Citizenship (COC) from the CIS in the mail.3e However if your child entered the United States before January 2004, or entered or will enter on an "IR4" or an "IH4" visa, he or she will not receive a COC and will have to apply for one from the USCIS when the qualifications are met.

5. Do you have to obtain A COC or Usp TO PROVE U.S. citizenship for your child?

No. You are not required to get an official document that proves your child's citizenship. Once the qualifications are met, your child becomes a USC without any further action on your part, and is entitled to all the benefits of being a USC whether or not you ever obtain a document that proves U.S. citizenship.

6. SHOULD YOU obtain documentary proof of your child's U.S. citizenship?

Yes and I strongly recommend it. Here are some reasons why you should do this.

  • Having a right or entitlement to something is only half the battle. The other half is to be able to prove the entitlement when necessary or if it is challenged. When an individual is not born in the U.S., the question of whether the individual is a USC will inevitably, and sometimes repeatedly, be raised at some point. Even if your child has become a USC under the CCA as a matter of law, and would ultimately prevail on this issue if it were challenged, you or your child will still be faced with the problem of having to convince others that he or she is a USC. Having clear and tangible evidence immediately on hand will save you and/or your child from having to produce numerous documents, and probably having to re-explain the CCA, every time it is necessary to prove citizenship.
  • More and more situations are requiring that a person be able to supply a document proving that he or she is a USC or is in the U.S. in lawful status. For example, Social Security Offices require proof of U.S. citizenship before they will classify your child as a USC in their system.4 Proof of U.S. citizenship is now required or being proposed as a requirement in other contexts, for example, to show eligibility for Medicaid, eligibility to vote, etc. Proof of U.S. citizenship or lawful immigration status is required to comply with employment eligibility verification, and in some states, to obtain a state driver's license.
  • For adult foreign born individuals who become USC's through naturalization, the Certificate of Naturalization is issued to them as documentation of citizenship. Your child should have similar documentation.
  • For families who live abroad, there have been times when the Department of State and the CIS disagree on whether a child is a citizen.
  • Once you have obtained the proof of citizenship, there will be no doubt that your child has met all of the requirements under the CCA and indeed is a USC.
  • Remember, that the point of getting this evidence is to protect your child and to make your child's life easier.
  • The cost will not get any cheaper and will likely increase over the years. (See the comment below regarding the increase in the cost of the Certificate of Citizenship on November 23, 2010.)

7. Why can't YOU use your child's U.S. State-issued birth certificate To prove u.s. citizenship?

Your child was not born in the U.S. Only the birth certificate of an individual born in the U.S. or in certain territories can serve as proof of U.S. citizenship for that individual.

8. How do you get proof that your child is a citizen?

You have two choices:

  1. Obtain a COC by filing the N-600 Application and/or
  2. Obtain a U.S. Passport (USP).

9. Which type of proof of citizenship should you obtain?

Under U.S. law, U.S. citizenship can be proven through a COC or a USP.4a However, I recommend that you get both. The COC is advantageous because it is universally recognized, only one-page long, indicates the date of citizenship and does not need to be renewed. It is very similar to the one page Certificate of Naturalization that is used by a naturalized USC to prove U.S. citizenship. Unfortunately the USCIS response time for issuing a COC after the application has been submitted has been very slow. The Passport can usually be obtained fairly quickly and will be necessary if you travel outside of the United States with your child. (See comment below.) If at all possible, start the process for both. You can then wait for the CIS to provide the COC.

10. How do you obtain a COC?

You can obtain the COC by submitting the Form N-600 Application to the USCIS District Office with jurisdiction over your residence in the U.S. Information and the form can be obtained through the USCIS website.

11. What is the cost for a COC?

The fee for the N-600 (and the N-600K) Application on behalf of an adopted child is $420. ($460 is the fee for a foreign born biological child.) However, note that on November 23, 2010, the fee will increase to $520. ($600 for a biological child.)

12. What documents do you have to submit with the N-600 Application?

  • A copy of the adoption decree issued from the state court where you finalize the adoption, the filing fee and the required two photographs.
  • If you change your child's name as part of the U.S. state adoption finalization, state the new name in Part 1 A of the Application and indicate that the name was changed pursuant to the adoption decree.
  • Most of the USCIS publications state that you do not need to submit documents that it already has in its file, such as your child's foreign birth certificate, etc., unless requested specifically by the USCIS.
  • While the CIS should have this in its file, you should also provide evidence that your child entered the U.S. as a lawful permanent resident. This can be shown through producing either the child's lawful permanent resident alien card or the child's foreign country passport with the I-551 stamp indicating the immigration visa classification, for example, "IR4".
  • You only need to submit copies of the documents. Do not submit originals unless you are specifically asked to.
  • The fee should be paid by certified check or money order. You should send the submission through a delivery service that can be tracked, for example, Federal Express.

13. What is needed to obtain a U.S. Passport?

  • A certified copy of the foreign country adoption decree, along with a certified English translation if not in English, and/or a U.S. state-issued adoption decree.
  • Evidence that your child entered the U.S. as a lawful permanent resident. This can be shown through producing either the child's lawful permanent resident alien card or the child's foreign country passport with the I-551 stamp indicating the immigration visa classification, for example, "IR4".
  • Your child's COC if your child has one.
  • Proof of the requesting parent's identification, for example, a driver's license.
  • Evidence of U.S. citizenship of at least one of the parents, for example: a birth certificate showing birth in the U.S., a U.S. Passport, a Certificate of Naturalization, if a naturalized USC or a COC.
  • You should also bring a certified copy of your child's birth certificate, along with the certified translation if it is not in English, to confirm your child's age.
  • You may be required to submit original or certified copies of various documents that will not returned until after the Passport is processed.
  • Your child must appear in person when you are applying for the passport.7

14. Is a COC required before you can obtain a USP for your child?

You should not have to obtain a COC before you can obtain a USP and the current information sheet from the Department of State website regarding the CCA is in accord. However the Department of State website regarding what documents are required to obtain a USP indicates otherwise. Because of this conflict, some offices are requiring a COC before they accept the USP application. If unsuccessful, you should try another designated office that accepts Passport applications. Some are more knowledgeable than others.

15. does your child need a USP to travel outside of the United States ONCE HE OR SHE BECOMES A usC?

Yes. Once your child becomes a USC he or she should enter and leave the U.S. on a USP.

16. WHAT IF YOUR CHILD MET THE QUALIFICATIONS OF THE CCA BUT NEVER GOT THE COC? CAN HE OR SHE STILL GET A COC AFTER HE OR SHE BECOMES AN ADULT?

Yes. Once your child becomes a USC under the CCA, your child remains a USC after becoming an adult. There is no time limit on when he or she can apply for the COC and the N-400 naturalization process is not applicable. (See note 2).

17. FINALLY, Make sure that your child understands that he or she is a USC and what this means.

You should tell your child that while he or she was born outside of the U.S., he or she is a USC under U.S. law. Explain what it means to be a citizen. I am surprised at the number of teenage adoptees who either do not know or understand this. You should also mention that sometimes U.S. citizenship may be questioned. Show the COC and/or USP to your child so that he or she knows that you have proof of citizenship should the need arise. Do not forget to tell your child or a responsible adult where the documents are kept.

______________________________

Please note that these are general comments and are not intended to be comprehensive. They are not legal advice nor should they be relied upon as legal advice. They are based on various publications and information that were found on the USCIS and DOS websites and related sources, and my experience.

If you have any questions about the CCA, other issues involving adoption, or general immigration questions, feel free to contact me. I am an attorney with a private practice in the areas of immigration/citizenship law and adoption of foreign-born children adopted abroad or domestically, as well as the mother of a 16 year-old child adopted from China in 1994. I provide legal services and consultations to parents and agencies throughout the United States and abroad to address U.S. immigration problems (NOID's, I-600 denials, etc.), as well as handle general immigration matters. I also handle domestic adoptions in Pennsylvania including independent, relative, stepparent and second parent adoptions, adoption finalizations and readoptions.

 

By C.J. Lyford, Esq.*

Attorney At Law

632 Germantown Ave.

Lafayette Hill, PA 19444

610-260-4055 (telephone)

This email address is being protected from spambots. You need JavaScript enabled to view it.

610-828-8777 (fax)

www.lyfordlaw.com (website)

 

Practicing in the areas of Immigration/Citizenship/Visa Law
Domestic and International Adoption Law

 

*Member of the American Immigration Lawyers Association. 100110 cjl

 

This material may be freely reproduced and distributed. However, when doing so, please credit C.J. Lyford. Thank you.

 



1Notes
1 Public Law No. 106-395. See also Immigration and Nationality Act ("INA") sections 320, 322 and 341.
1b The CCA will also apply to give automatic citizenship to children who are adopted in the U.S. and adjust status to lawful permanent resident, after two years of legal custody and residency, assuming the other qualifications are met (under 18 when the I-485 is approved.) See Comment number 1.
2 Unfortunately, the CCA does not apply if the child was 18 or older on February 21, 2001 or if the child entered or will enter the U.S. after turning 18 years of age. In this situation, the child will have to acquire U.S. citizenship through the N-400 naturalization process. Until your child becomes a USC, he or she may be subject to adverse CIS action if involved in criminal or certain other activities. An immigration attorney should also be contacted before the application for naturalization is filed to evaluate any potential risks from this action.
1a If you and your child are not permanently residing in the U.S., your child is still entitled to become a USC however you will need to apply for citizenship, using the Form N-600K. See also INA section 322. Citizenship will not be acquired until the date that the COC application is granted.
2a You can determine what classification of visa your child was issued by looking at the I-551 visa stamp in your child's foreign country passport.
2b The first IR4 situation arises because there has been no adoption proceeding abroad, when the adoption is not completed abroad and/or the adoption is not considered final by the foreign country. This is often seen in adoptions of children from India or Korea in which only a guardianship or custodial relationship is established between the child and parent(s) or the child and the agency. Adoptions from Thailand are also not usually final in Thailand. In this situation, an adoption must take place in the U.S. according to the law of the applicable U.S. state court where the parents, or sole parent, as applicable, reside, or where the court otherwise has jurisdiction. This is frequently referred to as an adoption "finalization". Once the adoption is "finalized", the child automatically becomes a USC as of that date.
The second IR4 situation is when both parents, or the sole parent, as applicable, did not see the child before or during the adoption abroad, even if the foreign adoption was considered final under the law of the foreign country where the adoption took place. This is sometimes referred to as a proxy adoption In order for the adoption to be final for purposes of citizenship, the CIS has generally required a readoption of the child in a U.S. state court. The readoption requirement may be waived if evidence is provided to the USCIS that the applicable state "recognizes" the foreign adoption as full and final under that state's adoption laws. Most professionals still recommend a readoption in this IR4 situation rather than risk uncertainty regarding a child's citizenship, and I agree. However, should you decide not to readopt because your state recognizes foreign adoptions as valid under its law, do not assume that your child is a citizen. Make sure that you take the next step and obtain a COC to confirm that the USCIS has accepted the proof of state recognition that you have submitted and has waived the readoption requirement. Otherwise, and not until then, will you be certain that your child has acquired U.S. citizenship.
3 The Hague convention will cover adoptions after April 1, 2008, unless it falls within the transition guidelines, for example, the I-600A was filed before April 1, 2008.
Please refer to the CIS and Department of State websites re the Hague Convention. (See, for example, the CIS website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=beb46faedb8f8110VgnVCM1000004718190aRCRD&vgnextchannel=f3beaca797e63110VgnVCM1000004718190aRCRD; and DOS website at: http://adoption.state.gov/about/how/hague.html, http://travel.state.gov/visa/immigrants/types/types_1312.html
3a Examples of countries that are not Hague Countries are Ethiopia, Haiti, Kazakhstan, South Korea, Russia, Taiwan and Ukraine. See the above Department of State website for a complete list.
3e The COC will be issued in the name on your child's visa. If your child's name is changed through readoption, etc., a replacement COC can be obtained through the N-565 form at the CIS website. The cost is $360.
4 After you get the COC or USP go back to the Social Security Office with the proof of citizenship to be sure that the Social Security records accurately reflect that your child is a USC.
4a 22 U.S.C.A. sec. 2705. However, even if under U.S. law, both documents are proof of U.S. citizenship, this does not mean that either has to or will be accepted as such, particularly abroad. For example, I have received occasional reports from families that a U.S. Passport was not accepted abroad by foreign country consulates in various situations because of the potential of document fraud. While this should not occur, it further supports the recommendation that both documents be obtained and carried abroad.
7 Unfortunately, the USCIS and Department of State websites have repeatedly and frequently been revised so that referencing back to certain explanatory documents that were previously available on line in the past is difficult and sometimes impossible.

International Adoptions to the U.S.

Here is the data from the US State Department showing the changing composition of source countries involved in significant numbers of international adoptions to the United States. This information now goes back to fiscal year 1985, which is the earliest year for which I have been able to obtain statistics.

A few words about this graphic. This clearly shows that until a few years ago Korea was, by far, the predominant source of international adoptions to the US. Currently, there is a split between China, Russia and Korea, with adoptions from Latin America holding roughly constant. Adoptions from Romania and Vietnam are increasing. Adoptions from India (not plotted) are also significant and have held steady for a number of years. Note that in FY91, for only one year, Romanian adoptions dominate the distribution.

The main point of this graphic, of course, is to show how adoption from China has grown from almost zero, to the largest single country of origin in FY95, with 2130 children and a further increase to 3333 in FY96. Current adoption rates suggest that the number could top 4,000 in FY97.

China adoptions to the US graph

The Visa Medical Examination: The Facts

"The visa medical examination said she was normal!"

"If hepatitis B is a contagious disease, why doesn't the US Embassy require a test for it before they give visa approval?"

"My child doesn't need any tests now that he has arrived home because he already was checked for his visa."

All of these statements show common misconceptions about one of the most poorly understood aspects of international adoption. For parents who travel, the visa examination is just the last hurdle of the obstacle course that will finally allow them to leave with their new child. For children who are escorted, parents may not be aware that a medical examination was ever a part of the visa process since no paperwork must be done for it in the US.

Why a medical examination for a visa at all? The visa exam has only two purposes: to protect the public health of the citizens of the US and to exclude mentally or morally defective persons from the US who might become public charges.  In other words, the Public Health Service wants to protect the people who already live in the US from two threats: exposure to a contagious disease and the burden of supporting persons who might never become law-abiding self-supporting members of our society. If you think about these guidelines, you will realize that the concern is not for the health of the immigrant, it is for the health of the people already in the US. The US Government has no particular interest in assuring the well-being of people who are not citizens of this country. Thus, it does not undertake to determine that all persons applying for a permanent residency visa are healthy or well. It only cares that those persons are not threats to the safety and well-being of its own citizens. Thus, a visa medical examination does not assure an adoptive parent that his child is physically, emotionally or developmentally normal [but only that the child] has no infectious or contagious disease.

What does the law require in a visa medical examination? Any person applying for a permanent residency visa (students, tourists and other temporary visitors are exempt) must undergo a physical examination by a medical officer approved by the US Embassy or consulate. The examination must look for these excludable conditions: Sexually transmitted diseases including chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum and syphilis. Active leprosy. HIV infection. Active tuberculosis. Mental retardation, insanity, narcotic or alcohol addiction or sexual deviation. Serious or permanent physical defects, diseases or disabilities.In addition, persons 15 years and over must have blood tests for syphilis and HIV infection and a chest x-ray looking for signs of tuberculosis. Children under 15 are not required to have these tests unless the examining physician feels the history or physical examination indicates a possibility of exposure. Notice that many contagious diseases such as hepatitis B, chicken pox, measles, intestinal parasites and malaria are not on this list. They are missing because: the conditions are already very common in the US, they are not spread by casual physical contact or the conditions needed to spread the diseases are not found or are rare in the US. (So why is HIV on the list? For purely political reasons, of course.)

What do these regulations mean for the internationally adopted child? Most children will have a brief physical examination including a medical history (if there is any information to be obtained). If the child does not have any obvious abnormalities and there is no reason to particularly suspect one of the listed infectious diseases, no other tests or examinations will be required. The officer will fill out the medical form which is then sealed into an envelope to be delivered to the US Embassy. There, after all other documents have been approved, the medical examination is reviewed and the visa usually granted. The actual medical report goes into a sealed packet which is left with the Immigration Officer at the point of entry into the US. Thus, if the parents are not present at the visa examination, they are likely never to receive the results of that examination and may not realize that it ever took place.

What if the examining physician feels there is a problem? He may order any tests that he wishes to rule out any of the conditions on the above list. Although these are usually as simple as a syphilis blood test, he may request psychological or IQ testing if he thinks it is necessary. In some areas of the world, certain tests are done routinely, regardless of the condition of the child. Thus, you will almost always find that the officer will require syphilis testing in infants in Latin America or HIV testing in children in Haiti or Uganda. The parents can not protest the request for the test. The officer will just give an unfavorable medical report and the visa will be denied. The parents can request extra testing themselves; they are paying for the examination. Such testing may not be readily available, may not be accurate and almost certainly will delay the granting of the visa. However, in some circumstances, it is the only reasonable approach, as in HIV testing in Romania. Obvious conditions such as a missing limb, a cleft palate or a known disability such as epilepsy, thalassemia or cerebral palsy will often merely be noted on the examination report without any further evaluation as to the severity or reparability of the condition. The quality of these kinds of notes is extremely variable. In Seoul, which grants more orphan visas than any other office in the world, even simple birth marks or hernias will be listed. In other offices which see few children or which frequently process children in very poor nutritional or developmental condition, only severely disabling conditions will be noted. Thus, a parent cannot rely on the visa examination as an absolute assurance that the child does not have anything on the list of excludable conditions. The quality of the exam depends almost entirely on the experience and thoroughness of the person performing it.

What if the examining officer issues an unfavorable report, that is, he finds a condition on the excludable list? Parents can appeal almost any decision, following certain courses of action. If the child has active tuberculosis or another untreated infectious disease, the condition can be reclassified after the child has begun treatment. If the condition is a mental or physical disability, the orphan visa officer may interview the parents, if they are present, to assure himself that they realize the extent of the condition and that they are capable of caring for the child. However, for most severe disabling conditions and for HIV infection, the parents will have to undertake a "waiver process." To obtain a waiver, the embassy or consulate forwards the visa medical report and any supporting evaluations or tests to the Centers for Disease Control (CDC) in Atlanta. There, the Office of Quarantine contacts the family who must then provide:

  • an affidavit explaining that they understand the extent and severity of the condition and giving a compelling reason to allow the child to enter the US. (Adoption is considered compelling for most children!)
  • proof that they have adequate financial resources to care for the child. This may include proof of health insurance and sometimes even an advance approval from the insurance company guaranteeing that the child's condition will be covered.
  • an affidavit from a physician stating that he will provide care to the child after arrival in the US.

This information is forwarded back to the CDC where a panel of physicians reviews the material and makes a determination that the child will not likely not be a threat to the health of others or become a public charge. This determination is then sent back to the embassy or consulate. Only then, the material is again reviewed and, if all appears appropriate, an orphan visa granted.The waiver process typically takes 3 to 6 months to complete; however, it can be accomplished in as short a time as a week if the medical condition is life-threatening or there is some other compelling reason to move quickly. Most waivers applied for by adoptive parents are approved, probably because the parents have already had plenty of opportunity to review the child's condition and their own financial resources.General questions about the medical visa examination can be answered by any INS office or the CDC. Specific questions about a particular child or about local requirements are best answered by the embassy or consulate where the visa will be obtained.

The best advice to keep in mind is: The visa exam is just another bureaucratic step in the immigration process. Parents should not depend on it for any medically valuable information. If there are concerns about a particular child, ask questions of the agency or lawyer or get a second medical opinion. Visa approval provides no guarantees to the health of your child.

Stuff

Our magazine features an article on international adoption that I think many FCC families might find interesting. I'm wondering if you could post the site so people could find the article. The magazine is entitled "Origins: Current Events in Historical Perspective" and can be found at: www.ehistory.osu.edu/osu/origins

Equalityforadoptedchildren.org/-To achieve equal treatment between adopted and biological children of American citizens under federal and state laws. EACH will strive to be a voice for adopted children and their families. While other organizations represent adoption agencies, adoption attorneys, child welfare advocates and combinations of these groups, there is not an advocacy group located in Washington, D.C. with the sole purpose of representing the interests of adopted children and their families. EACH will fill this void and be the “voice of adopted children and their families” before Congress and the Executive Branch.


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