Application Process Overview
First, you have to get a court order from a juvenile court to show that you’ve been abused, abandoned, or neglected by at least one of your parents along with other requirements. This is an unusual situation because immigration is under federal law, but there is no federal court that’s tasked with making decisions for minors. The SIJ statute gives state court judges the authority to make those decisions.
It’s important to note that not all judges have encountered this or are familiar with this process. The type of court varies state by state. In New Jersey, it’s the Superior Court Family Division that decides the dependency or custody and care of juveniles based on state law. Other states may have their own definitions of what is considered abandonment, abuse, and neglect.
Once you’ve received the court order, you can then apply for a SIJ status from the US Citizenship and Immigration Services (USCIS) using Form I-360. Lastly, you can apply for a green card using Form I-485. Let’s discuss each step in more detail.
Getting a Juvenile Court Order
If you’re over 18 years of age and under 21, you need to be careful when getting your court order. Some state courts only have the authority to make decisions for juveniles under 18 years old. In New Jersey, it isn’t age-specific, as there are many 18 year-olds who are in college and still dependent on their parents. However, this is not the case in every state.
Even in New Jersey, there has been litigation against USCIS on this exact issue. On July 3, 2019 the Hon. Madeline Cox Arleo granted a preliminary injunction to prevent USCIS from denying SIJ petitions on the basis that the Family Court lacked jurisdiction to make child welfare findings for petitioners aged 18 to 21. There have been similar decisions in other states.
In order to get a juvenile court order, the judge will need to make five specific findings. If the Judge doesn’t make these findings with details, you won’t be able to go to the next step.
Age. You must be under 21 years old, and this needs to be proven by testimony and corroborated by your birth certificate or passport.
Unmarried. You can’t be unmarried at the time of filing, and this can be proven simply by testimony. If you were married at a younger age, but aren’t anymore due to death, annulment or divorce, you still meet this criteria.
Dependent. You must be declared dependent on the juvenile court. This means that the Family Court takes jurisdiction over you. Note that you still qualify even if you turn 21 while your SIJ application is processing, as long as you are not 21 years old before the judge makes their decision.
This is typically proven through testimony of a parent, relative, friend, or an agency filing for your custody. That person or agency will testify that they provide for your needs.
Reunification. You must be able to prove that reuniting with one or both of your parents is not possible because of abuse, neglect, abandonment or other similar circumstances based on state law.
Abandonment is usually easy to prove. The parent doesn’t provide any of your needs and hasn’t cared for you, or even contacted you. Some states may consider death as abandonment since it leaves the child without support, but make sure to check your state law before trying this argument. Note that even if you can make this argument in your state, your case would be stronger if you can make an argument for abuse or abandonment before a parent died.
Abuse can either be physical or verbal. Physical abuse can be easier to prove through testimony of what you suffered. This is often coupled with emotional abuse through profane or inappropriate language. On the other hand, emotional abuse, without physical abuse, will likely require an expert (like a psychologist or therapist) to evaluate you and support the position that what you suffered was due to your parents emotional abuse.
Neglect is usually an inaction by a parent. For example, a mother who did nothing to stop the father from physically abusing their children can be considered as neglect. Keep in mind that you must show you can’t reunify from at least one of your parents, but the Judge is the one who decides whether or not reunification is possible for both parents, even if one of your parents is the one requesting the custody decision.
Best interests. Lastly, you need to show it’s not in your best interest to return to your home country. Proving this can vary by country. Generally, you should provide evidence of the conditions in your home country and region where you lived. For example, there are organizations that print yearly reports on the conditions of counties like:
- Country Reports on Human Practice
- Central Intelligence Agency – World Factbook
- Amnesty International
- Freedom House
- Human Rights Watch
Compare that to the life and opportunities that you now have in the US. For example, in Guatemala you had to work and couldn’t go to school. You didn’t always have food to eat each day. In the U.S., you can go to school and you’re fed lunch in school each day.
Filing a Petition for SIJ Status
The second step is to file Form I-360 “Petition for Special Immigrant Juvenile Status.” Be careful in filling out this form, since the same form is used for Widowers, VAWA application, and special immigrants like religious workers and physicians. There are several portions of the form that won’t apply to you, but make sure to indicate N/A for questions that are not applicable rather than leaving it blank.
Once you’ve filled out the form, you’ll need to attach paperwork that proves you’re under 21. You must file the petition to court before you turn 21, or you’ll no longer be eligible for SIJ. Moreover, you’ll need to ask for written consent from the US Department of Health and Human Services if you are currently in their custody. You also have to attach the juvenile court order in your petition. Make sure the order includes a detailed explanation for why the finding was made to avoid facing problems later on.
While the I-360 grants you SIJ status, know that it isn’t an end in itself. Being classified as a “Special Immigrant Juvenile” allows you to apply to become a lawful permanent resident (green card holder) when a visa becomes available.
Getting a Green Card
Once your I-360 is approved, you’ll have to wait for a visa to become available before you can file your green card application through Form I-485. However, if an immigrant visa is immediately available, you’ll be able to file your I-360 and I-485 forms together.
To check the visa availability, you have to look at the employment-based fourth preference (EB-4) immigrant visa category on the Visa Bulletin maintained by the Department of State. It’s best to consult with a qualified immigration attorney to determine which is best for your situation.
Know that your age doesn’t matter when you’re filing form I-485. You can apply for permanent residency after you turn 21 as long as you got the predicate order before you turned 21 (or 18 depending on your state) and filed for your I-360 before you turned 21.
However, where you file form I-485 depends on whether or not you are in removal proceedings. If you aren’t, you should have your form filed with the USCIS. If you are in a removal proceeding, you can either file a motion to terminate proceedings and remand the case to USCIS, or file your I-485 with the court if the motion is denied.
What Happens After Filing a Green Card Application
If you filed an application to get a green card and become a lawful permanent resident, you’ll receive a biometrics appointment notice to have your fingerprints and picture taken at the USCIS. If you haven’t submitted a medical exam, or it is expired, you will need to submit one through Form I-693.
Note that the USCIS may request more information or schedule an interview with an immigration officer if needed. Depending on your local jurisdiction, you’ll either have an interview or get a decision. If your green card application is approved, you’ll receive a notice stating that, and the date of approval is the start date of your permanent resident status.
On the other hand, if your application is denied, you’ll receive a notice explaining the reason for denial. You won’t be able to appeal the decision, but you can either file a motion to reconsider or renew your petition in immigration court. Whichever option you choose, it’s highly advised to get legal representation from an immigration attorney, since these require legal arguments that have a better chance of success when made by an attorney.
At Andres Mejer Law, we can provide you with the legal assistance you need to apply for a Special Immigrant Juvenile status and file your green card application. Schedule a free consultation with us and start your immigration journey the right way!