SPECIAL IMMIGRANT JUVENILE STATUS - LEGAL GUIDE
Special Immigrant Juvenile Status (SIJS) is granted for purposes of obtaining relief for children (anyone under age 21 and unmarried) from abuse, neglect and/or abandonment. In addition to being under twenty one years old and unmarried, to qualify for SIJ status a child must be under the jurisdiction or “dependent upon" a juvenile court due to abuse, neglect and/or abandonment; cannot be reunited with one or both parents, and for whom it is not in the best interests to be returned to his or her country of nationality or last habitual residence.
Once granted SIJ status, a child may remain in the United States and obtain lawful permanent residency.
The Immigration and Nationality Act (INA) at § 101(a)(27)(J), codified at 8 USC § 1101(a)(27)(J), established relief for undocumented, unaccompanied minor children through Special Immigrant Juvenile Status.www.uscis.gov.
The Trafficking Victims Protection and Reauthorization Act (TVPRA) of 2008, Public Law 110-457, 122 Stat 5044, amended the INA, and made changes to requirements for SIJ status, streamlining SIJS procedures.
Establishing SIJ status
Application for SIJ status should be made as soon as an undocumented youth is identified.
A child must be under twenty one years old to apply for SIJ status. An application for SIJ status must include proof of age at the time the application is submitted. No child can be denied SIJ status because of age as long as s/he was a child (under 21) when s/he properly applied for SIJ status, regardless of the individual’s age at the time of adjudication. SJI status cannot be revoked based on the age of a child on the date the SIJ petition was properly filed, if filed on or after Dec. 23, 2008, or if it was pending as of that date.
A prerequisite to SIJ status is a finding by a court or administrative proceeding that it is not in a child’s best interest to be returned to his/her country of nationality or country of last habitual residence. Factors such as family/friend support systems, emotional well-being, medical and educational resources, standards of living, history of abuse, neglect and/or abandonment are considered in determining what is in a child’s best interest.
Although some conditions may result in the denial of a petition for Special Immigrant Juvenile Status, the TVPRA of 2008 expands the exemption from inadmissibility grounds for SIJ status applicants to include:
• 212(a)(4) (public charge); • 212(a)(5)(A) (labor certification); • 212(a)(6)(A) (aliens present without inspection); • 212(a)(6)(C) (misrepresentation); • 212(a)(6)(D) (stowaways); •212(a)(7)(A) (documentation requirements); and
. 212(a)(9)(B) (aliens unlawfully present).
NOTE: Discretionary waivers are also available in some circumstances. The TVPRA also makes discretionary waivers available to other immigrant groups, including persons with mental or physical disorders, individuals with histories as prostitutes or procurers, drug addicts Bulletin #10-68-06 May 14, 2010 or abusers, and those who helped others enter the United States illegally. A list of discretionary waivers is found at INA 245(h) (2) (B); 8 USC 1255(h)(2)(B).
Most juvenile delinquency adjudications are not considered convictions for purposes of immigration and deportation, but they may be considered as evidence against admissibility in a discretionary waiver phase of SIJ status adjudication. And some juvenile adjudications may trigger inadmissibility grounds, such as controlled substance and firearms offenses. In addition, juvenile delinquency determinations can serve as negative evidence in the discretionary phase of immigration relief and must be mitigated by positive equities. Special Immigrant Juvenile Status applicants may be inadmissible if they are tried and/or convicted as an adult.
Because the grounds for granting SIJS are based on a child’s need for protection from abuse, neglect and abandonment, as with international adoptions, a child granted SIJ status cannot later petition for their biological or prior adoptive parents to enter the United States.
An application for SIJ status requires a copy of the juvenile court order establishing dependency upon the court. The court order must have the exact language showing that a child meets all immigration requirements. The court issuing the order may be a juvenile court that handles abuse and neglect matters, a family court, a juvenile delinquency court, a probate court, or some other state court making decisions regarding juveniles.
Children in guardianship arrangements as well as those in formal or informal kinship care situations may be also be eligible for SIJ status. Moreover, SIJ applications stemming from children in kinship or guardianship scenarios do not require that the relative caregiver have a certain immigration status.
Be aware that a child may be eligible for other relief under immigration laws, such as a U Visa (for crime victims), a T Visa (for trafficking victims), protection under the Violence Against Women Act (VAWA), asylum (with special provisions for unaccompanied alien children), family-based immigration petitions, etc.
* Other issues to be aware of:
Section 235 (d) (2) of the TVPRA 2008 requires the U.S. Citizenship and Immigration Services (USCIS) to adjudicate SIJ petitions within 180 days of filing (although it may take longer). Under 8 CFR 245.6, an interview may be waived for SIJ petitioners under age 14, or when it is determined that an interview is unnecessary.
NOTE: Fraud at entry into the US through or with individuals with whom there is no legal relationship is not an absolute bar for SIJ status eligibility. However, the use of false documents (birth certificate, Social Security number) for purposes of obtaining a benefit may create a permanent bar to SIJ status eligibility.
NOTE: Early identification of potentially eligible children in foster care is important because the SIJ status process can take more than a year
**Immigration law is a highly complex and dynamic federal law. The information in this
guide is intended for limited educational purposes only, and should not be construed as legal advice.