PURPOSE: This advisory is issued due to the need for further public information regarding matters addressed in an official U.S. State Department circular on U.S. immigration procedures for RMI citizens disseminated publicly in February 2002.

ADVISORY: RMI citizens who have contact with agencies or persons involved in or seeking to arrange adoption of RMI citizen children by adoptive parents from the United States or other nations are advised as follows:

• To protect the best interests of children, adoptions of RMI citizen children by prospective adoptive parents from the U.S. or other foreign countries should be completed in the RMI under RMI law. Taking a child out of the RMI and to the U.S. or other countries to be adopted under foreign national or local law may give rise to legal problems in the foreign nation, and may create uncertainties about whether the child’s best interest can be protected. For example, a child taken to the U.S. or other foreign country, and left with intended parents prior to completion of adoption procedures in the RMI, in some cases may not ever be legally adopted. If the adoption process in the country of the adoptive parents is never completed, the result could be that no one would be recognized as legally responsible for the welfare of that child. Such children could be abandoned and become lost, or become the victims of abuse and crime. If rescued, such children could be turned over to the government, and if repatriation to the RMI were not possible due to lack of documentation or otherwise, such children could become legally classified as orphans.
• Even in the U.S. and other countries where child welfare laws and measures to protect the interests of children are reliable in most cases, there are many risks if custody and care is turned over, even to well-intentioned persons, without a legal adoption in the RMI and assignment of legal responsibilities to the adoptive parent. In the case of the U.S. and most nations, adoptive parent responsibility for the adopted child is documented and confirmed as part of the immigration process whereby the adopted child is admitted to the country of the adoptive parents as an immigrant with a visa, and subsequently through the naturalization process whereby the child acquires the citizenship of the adoptive parents. Without following this procedure, the risks to the child referred to above are increased.
• As parties to the Compact of Free Association, the RMI and U.S. governments share the same concern about the welfare of children and the risks of abuse for both infants and older children who may be adopted. When done legally and properly, adoption can be a very good and important alternative for some parents and children. As noted above, however, if brought to the U.S. without being legally adopted in the RMI, children could end up without a legally responsible parental guardian, or a place to live with adults who are fit to take care of them until they are adults over the age of 18. In addition, if adopted children are not naturalized under U.S. immigration laws based on adoption by U.S. citizen parents, as a child or later in life as an adult such a person could lose the privilege of living in the U.S. under the Compact for legal reasons. If required to return to the RMI later in life, a person who has been raised in the U.S. and had little or no connection with the RMI could be sent back and denied entry to the U.S. thereafter. These are problems the RMI and U.S. seek to address in carrying out governmental responsibilities with regard to persons entering the U.S. under the Compact.
• Under Section 141 of the Compact of Free Association, all RMI citizens are allowed to enter and reside in the U.S. without first obtaining a visa. A visa is permission of one country for entry into its borders by a citizen of another country. The Compact waives and exempts RMI citizens from the visa requirement for entry into the United States. Because of the controversy over migration of adoptive children under the Compact and the risks to children if not properly adopted, the RMI has formally advised the U.S. that it recognizes the need to change the visa waiver procedures under the Compact by mutual agreement in order to protect the best interests of RMI citizen children coming to the U.S. for the purpose of adoption. The RMI has offered to enter into an agreement that would define a new exception to the visa waiver privilege so that in the future RMI citizen children and adults escorting them to the U.S. for purposes of adoption would be required to obtain a visa based on completion of adoption in the RMI.
• Even though the U.S. has not yet responded to the RMI proposal to amend the Compact to address adoptions, the U.S. Immigration and Naturalization Service (INS) has begun to enforce proposed new rules that would require a visa in adoption cases. The RMI has advised the U.S. that in its view under Compact Section 141 the INS does not have authority to enforce these new rules, unless the Compact is amended to create an exception to the Compact visa waiver in adoption cases, as proposed by the RMI.
• While this dispute is being resolved, the public is advised that if an RMI citizen child is taken into the U.S. under the Compact of Free Association, and the intent of the adults who take the child to the U.S. is to release custody and care of the child to prospective adoptive parents, the INS may take legal action to return the child and such adults to the RMI and exclude them from the U.S. until they obtain a visa. While visa applications are now available at the U.S. Embassy, the issuance of visas may be problematic because of the legal controversy surrounding the unilateral INS actions, as well as the need for visa applicants to go to the U.S. Embassy in Manila for issuance of visas by consular officers there.
• RMI parents and legal guardians of RMI citizen children entering the U.S. for adoption, as well as RMI authorities responsible for adoption matters and family law enforcement in the RMI, should be aware that the U.S. Immigration Court has recently ruled that the INS does not have authority under the current laws of the United States to exclude RMI citizen children or their adults escorts from entry into the U.S. solely because entry is for the purposes of adoption. The Court’s ruling recognizes that as a U.S. law and treaty the Compact does not create an exception to the visa waiver in cases of adoption, and that the U.S. Congress has prescribed a procedure for amending the Compact by mutual agreement rather than by unilateral actions by the U.S. or the RMI. The INS is appealing that ruling to the Board of Immigration Appeals, but during the appeal period the INS is continuing to enforce a policy of seeking to exclude RMI citizens entering for adoption. As a result of the Immigration Court ruling rejecting the INS legal position in adoption cases, the INS is allowing “parole” entry of children being adopted, retaining the option of seeking exclusion of the paroled RMI citizens at a later time.
• The current INS policy asserting an exception to the Compact visa waiver for adoptions has created legal confusion over interpretation of the Compact as a U.S. statute and treaty. This could mean that adoption proceedings underway, or that would already have been begun in the U.S. but for this dispute, which arose after some children had already entered for adoption, could be delayed or prevented from being concluded successfully. This could be the result if legal uncertainties are created by the INS actions become an issue in U.S. adoption proceedings. This may increase the risks that children already in the U.S. for adoption under the Compact will not be legally protected by completion of prospective or pending adoptions in the U.S., which were expected to be followed by naturalization based on such otherwise lawful adoptions.
• Even in the absence of an RMI adoption, lawful adoption in the U.S. of an RMI citizen child admitted under the Compact with a visa waiver should be sufficient to create eligibility for permanent residence leading to naturalization. The U.S. Government has recognized that RMI citizens who enter as nonimmigrants with a Compact visa waiver and then become eligible for naturalization can petition for change of status from nonimmigrant to immigrant status and apply for permanent residence leading to naturalization. The adoption problem that arose under the Compact therefore should be addressed by requiring immigrant visas for adoption cases in the future, rather than trying to interpret the Compact in a way that alters the visa waiver privilege in non-adoption cases, or in the cases of children who entered for purposes of adoption before the INS revealed publicly its new interpretation of the Compact.
• The new INS interpretation of Section 141 requires visas not just for intended adopted children, but for all RMI citizens who may intend to exercise the privilege expressly granted in Section 141 to seek a change of status, if otherwise eligible, and also to travel back and forth between the U.S. and the RMI without a visa, whether that intent is formed before or after entering under the Compact. As noted above, the U.S. Immigration Court has correctly determined that the Compact visa waiver does not enable the INS to require visas for some RMI citizens but not others based on when or where the intent to exercise the privileges granted by Section 141 may be formed. The RMI concurs with the U.S. Immigration Court in this regard, based n the clear mandate of current law under which the time and place RMI citizens form the intent to seek permanent residence leading to naturalization does not bear on eligibility to enjoy the privileges granted by Section 141 of the Compact.
• Because the INS continues to enforce its new proposed rules during its appeal of the ruling by the U.S. Immigration Court rejecting the INS legal position, RMI citizens are advised that any determination by U.S. officials before or during entry to the U.S. that an RMI citizen has formed mental intent to exercise the full extent of privileges granted under Section 141, including the eligibility to seek permanent residence leading to naturalization under Section 141(c), may result in legal action by the INS seeking exclusion and return of the RMI citizen(s) concerned to the RMI. This includes, for example, RMI citizens who are eligible for naturalization due to relationship to U.S. citizens, those who may intend to marry U.S. citizens, persons traveling to the U.S. for medical care who may also be eligible for permanent residence, as well as enlistees and active duty personnel serving in the U.S. military.
• Once the INS has determined that intent to naturalize if eligible exists and that a visa is required, travel back and forth between the U.S. and the RMI may be prohibited under the current INS policy, until a visa is obtained. Visas may be delayed or denied for extended periods of time, making travel difficult or impossible. While parole entry may be allowed in some cases, this at the discretion of the INS and not consistent with the privilege defined by Section 141 of the Compact.
• All RMI citizens are advised to be aware of these conditions at this time, and to take this information into consideration in connection with travel to the United States. It also must be understood that making false statement to INS or other officials may result in legal consequences, including loss of Section 141 privileges and other legal problems.
• As early as August 31, 2001, and as recently as March 15, 2002, the RMI has respectfully submitted to the INS and the U.S. government that the INS legal position in these matter can not withstand legal scrutiny. Specifically, the RMI does not concur with the INS assertion that the term “nonimmigrant”, as used in Section 141 of the Compact, triggers more general provisions of the U.S. Immigration and Nationality Act in a way that restrictively modifies the far more explicit and specific terms of Section, which clearly define the privileges granted to RMI citizens. Among other things, this INS interpretation is in direct conflict with and would nullify numerous other provisions of U.S. federal law contained in the Compact of Free Association Act of 1985, as approved by Congress in U.S. Public Law 99-239.
• The RMI is making every possible effort to resolve this legal dispute with the U.S. and restore the cooperation and reciprocity that has existed on immigration matters under the Compact for 15 years, until the INS issued its new rules and interpretation of Section 141 of the Compact in July of 2001. The RMI and U.S. are the closest of allies and strategic partners under the Compact, and it is expected that this dispute can be resolved without affecting the overall success of free association. However, the immigration privileges granted by the Compact are of great social, political, economic and historical significance to the RMI. Accordingly, the RMI has informed that U.S. that if changes to the immigration provisions of the Compact are desired the RMI is prepared to cooperate and support the U.S. in instituting reforms of Compact immigration policy as it relates to the RMI. The RMI will seek to satisfy every U.S. concern rather than having these issues determined through dispute resolution under the Compact, or unilateral political action by Congress. The current dispute arises solely from the INS attempt to change the immigration provisions of the Compact unilaterally and by regulation, instead of by mutual agreement as required under the Compact as approved by the U.S. Congress.

All persons with questions about this advisory may contact the RMI Ministry of Foreign Affairs in Majuro, or the RMI Embassy in Washington D.C. for further information.

Contact Information:

Ministry of Foreign Affairs
Post Office Box 1349
Majuro, MH 96960
Telephone: (692) 625-3181
Facsimile: (692) 625-4979

RMI Embassy, Washington D.C.
2433 Massachusetts Avenue, N.W.
Washington, D.C. 20008
Telephone: (202) 234-5414
Facsimile: (202) 232-3236
Website : http://www.rmiembassyus.org