[sak9645]

You need to get a lawyer.

It IS visa fraud to bring a child into the U.S. on an adoption visa, if it can be proven that the person applying for the visa had, at that time, the intent to dissolve/not finalize the adoption and to place the child with another family. This intent can be shown by the fact that the person relinquished the child to his/her agency or to another family immediately upon arriving home. The person who commits visa fraud can face a felony conviction and criminal penalties, if the U.S. government chooses to prosecute.

Whether a person who knowingly accepts a child brought into the country under false pretenses is also considered to have committed a crime is something that a lawyer will need to investigate. It is possible that, since you knew that the child was being brought into the country through misrepresentation of his situation, so that you could adopt him, you have some legal responsibility. It is also possible that your agency has some legal responsibility, especially if it can be proven that the agency advised the first family to bring the child home and relinquish him to you, instead of overturning the adoption in Guatemala.

It appears from what you said that the child's original adoption has already been dissolved legally and that you have already finalized his adoption in your state. If so, that's a good thing. Otherwise, if you have legal liability, and are charged with a criminal act, your state could decide not to let you finalize the adoption.

As far as your son's status, I know that it seems unfair to penalize him for the actions of his first adoptive family. The child did nothing wrong. However, under federal law, he is probably classified as an illegal immigrant, since his visa was obtained improperly, and illegal immigrants don't qualify for either automatic citizenship under the Child Citizenship Act of 2000 or naturalization. A good adoption/immigration lawyer can help you decide if there are ways to help your son get citizenship, so don't rely solely on what the USCIS tells you about an appeal.

There ARE other people who have faced what you and your son are going through. Although these sorts of things are not discussed in public a great deal, they do happen, and not as rarely as you might think.

In my own community, I actually met one couple who decided to reject a placement after their first trip to observe a referred child in Eastern Europe, because the child seemed very delayed. Having adopted a healthy infant from a good orphanage in another Eastern European country previously, they were also shocked at the conditions in this child's orphanage and the child's overall health status.

The adoption agency urged the parents to make the second trip, go through with the adoption, obtain the child's visa, and hand the baby over to an agency representative as soon as they cleared Customs and Immigration in the U.S. The parents, knowing that they were committing visa fraud but wanting to get the child out of her unheated, extremely under-resourced orphanage and suffering from a certain degree of guilt about the decision not to adopt her, agreed to do what the agency recommended.

Ultimately, the Mom didn't feel she could handle the trip emotionally, but the Dad traveled, completed the adoption, carried the child home, and handed her over to the agency. The child was placed with a foster family and later adopted; fortunately, she caught up rapidly and turned out to be quite healthy.

In that case, the USCIS did not find out that the family planned to disrupt, the adoption in another state went through, and I am unaware of any problems the new family faced in terms of getting citizenship for their child, although there may have been some.

The disrupting family decided to take some time to grieve, and then to pursue adoption from a different country. And the agency eventually went out of business, possibly because of unethical practices like advising families to commit visa fraud, as well as because of poor preparation of families for what they might experience in the foreign country.

I am also aware of an agency that found out, after an adoption decree was issued in a foreign country and the new parents didn't hurry to travel and bring their newly adopted child home, that the husband and wife had begun divorce proceedings, but were going through marriage counseling in a last-ditch effort to save their union.

Seriously conflicted about the legal implications of what she was doing, but not wanting to have the child lose what might be a last chance for adoption, the normally very ethical agency head decided to escort the child to the U.S., even though it meant signing papers indicating that the new parents intended to care for their child. The child was placed into foster care with a family who agreed to adopt, if the parents relinquished their rights, which they appeared likely to do.

I do not know what happened subsequently. If the parents decided to dissolve the foreign adoption, the agency, I'm sure, would have made every effort to help the foster family become the legal parents. However, the agency never had a case like this before, so it is quite possible that the foster family will also run into problems with naturalization, if the USCIS discovers that the child was never actually parented by the first family.

On-line, I also met a young woman, with an unusual story. This young woman had just learned that her adoption had been irregular, and that she was not eligible for citizenship.

The young woman, from an African country, had been raised by a family in the U.S. from the time she was a young baby. A hard-working, serious student, she had made good grades, and was now trying to get a college scholarship. As she began to apply for scholarships, she learned that most would be given only to U.S. citizens. When she tried to apply for citizenship, however, she was turned down.

She had always assumed that she was legally adopted from her birth country. In fact, however, this was not so. Her birthfather, who knew the adoptive parents because they used to reside in the same country, brought his newborn daughter to the U.S. on a non-immigrant, tourist visa. By prearrangement, he then left the child with the adoptive parents and returned home.

The child's visa expired, but she stayed on in the U.S. and was raised as a daughter by the adoptive family (who were legal residents of the U.S.) The adoptive family did not realize that the birthfather had committed visa fraud by applying for a tourist visa for her, knowing full well that he was going to the U.S. to place her with an adoptive family. And they did not realize the huge problem created by the fact that the girl was not adopted legally and was living in the U.S. on an expired tourist visa. Taking in someone else's child was not a big deal in their country of origin.

So the young woman had quite a shock when she learned that, from the standpoint of the USCIS, she was an illegal alien and subject to deportation to her birth country -- a country she had left behind when she was just a couple of months old. She was also told that, even if she managed to get humanitarian parole to remain in the U.S., she had absolutely NO chance of becoming an American citizen.

I never found out what the outcome of the case was. I don't know if she and her family were able to retain a competent attorney, as I advised. I do know that this poor young woman, through no fault of her own, appeared to be losing all chance of going to a good college, finding a good job, and living the life of a typical American.

In short, ignorance of the law resulted in some very negative consequences for the girl. And ignorance of the law by the people who advised you that your son's adoption would be easy has led to some negative consequences for you and your son.

I would advise anyone who wants to adopt a foreign born child whose first adoption was disrupted to find out, before proceeding, if the first adoptive family went through readoption/recognition in the U.S., if necessary, and obtained the child's citizenship before relinquishing parental rights. It might also be a good idea for the family to verify any information provided by the adoption agency, related to the "ease" of such an adoption, with a reputable immigration/adoption attorney.

Right now, your best bet is to find the most experienced and reputable adoption/immigration lawyer you can find, and see what he/she can do for you. I am not an attorney, and do not know whether there are any options. However, for the sake of your son's future -- he'll need citizenship for a lot of purposes, possibly including scholarships, security clearances, etc. -- I do hope that something can be done.

Sharon