Visas for Abandoned, Neglected, Abused Immigrant Children
Navigating the complex United States immigration law system as an adult can be difficult and intimidating. For children who are present in the U.S. without any valid immigration status, figuring out how to legally remain in the country may seem impossible.
Millions of unauthorized immigrant children in the United States are eligible for deferral of deportation under the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program. We have discussed that program in greater detail in other articles. DACA, however, only provides temporary relief from deportation and does not contain a path to obtain permanent residency or any other legal immigration status. This is a major drawback of DACA.
The most vulnerable of child unauthorized immigrants, however, may have a straightforward path to legal status. For those who have been abandoned, neglected, or abused, U.S. immigration law contains a provision for granting legal permanent residency (i.e. a green card). Obtaining permanent residency for abandoned New Jersey children is possible.
What is Special Immigrant Juvenile Status?
Special Immigrant Juvenile Status ( SIJ) is a classification given to certain unauthorized immigrant children. Once the status is granted, the child may apply for legal permanent residency despite having entered the U.S. illegally, being unlawfully present in the U.S., or being inadmissible to the U.S. and otherwise barred from applying for permanent residency. Please note, however, that a separate waiver may need to be filed to cover grounds of inadmissibility. That is discussed in greater detail below.
Who Qualifies for Special Immigrant Juvenile Status?
To qualify for SIJ, the child must meet the following criteria:
- Must be under 21 years of age;
- Can’t be married (marriage makes you emancipated);
- Must be dependent on the court, a government agency, or on someone applying for the child’s custody
- Can’t be reunified with one or both parents of the child because they abandoned, neglected or abused you; and
- It must not be in the child’s best interest to return to their home country
The key to obtaining SIJ status is that the child must have been abandoned, neglected, or abused by one or both parents. These children may be from a variety of groups: children without parents or guardians who are in federal custody, children in the state welfare system, and children who are under court-ordered custody agreements (either wards of a state agency or individual custody).
The State Court Order
To succeed in being classified as a SIJ, the child must submit an order from a state court. Each of the states in the U.S. has different laws and procedures for obtaining the court order. Those seeking SIJ status should understand the laws in the state in which they live. But, essentially, the state court must decide the following:
- That the juvenile is a dependent of the court or has been legally placed with a state agency or individual;
- It is not in the juvenile’s best interest to return to his or her home country or the last country in which the juvenile lived before entering the U.S.; and
The juvenile cannot be reunited with a parent because of one of the following reasons:
Similar reason under that state’s laws. For example, in New Jersey death of a parent can be considered abandonment.
The issue of the juvenile’s abandonment or neglect may be brought by police, welfare authorities, family members, or the child’s non-abusive parent. Please note that the state court order must be in effect at the time the petition is filed with the USCIS. However, if the order is not valid simply because the juvenile became too old to continue to fall under the jurisdiction of the juvenile court, the petition may still be approved.
The Special Immigrant Juvenile Petition and the Green Card Application
Petitioners for SIJ status must file Form I-360, Petition for Amerasian, Widow(er), of Special Immigrant. The petition must be filed with the state court order discussed above. It must also include birth certificates, immigration documents, and any other relevant supporting documentation.
Petitioners for SIJ status may file the I-360 alone or may concurrently file it with Form I-485, Application for Adjustment of Status to Permanent Residency. Either way, there may be some time between approval of the SIJ petition and approval of the application for permanent residency. This is because of annual numerical limitations established by Congress. In general, however, priority dates for the SIJ category are current for most countries. SIJ falls in the EB-4 category on the visa bulletin. I have previously discussed the visa bulletin in other articles.
If the SIJ is inadmissible to the U.S., he or she should also include an inadmissibility waiver (Form I-192). Further, while the permanent residency application is pending, the SIJ may be issued an employment authorization card. For this, Form I-765 should be filed. An application to waive the application fees (Form I-912) may be included as well.
Limitations on Sponsorship for Special Immigrant Juveniles
When the permanent residency petition is approved, SIJs receive the rights and benefits of other legal permanent residents with one big exception: Special Immigrant Juveniles cannot sponsor relatives in the same way as other legal permanent residents can.
Specifically, SIJs may not sponsor siblings while they are permanent residents (they can sponsor brothers and sisters after they naturalize and become U.S. citizens) and they may never sponsor their parents (even the non-abusive one and even after they become citizens). In sum, these permanent residents are orphans in the eyes of the law and, as such, their family sponsorship privileges are substantially restricted.
There are many complicated issues in the Special Immigrant Juvenile process. Both state courts and federal immigration agencies are involved. Anyone seeking these immigration benefits needs to ensure that he or she is protected and secure throughout the process. This is where an experienced immigration attorney is invaluable. As such, if you are contemplating pursuing a green card through the SIJ program or if you are a child advocate, you should seek the advice and assistance of competent legal counsel.
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