Bustos Law Firm

Special Immigrant Juvenile Status

In Immigration on July 15, 2014 at 3:46 PM

2014.07.15 image for Special Immigrant Juvenile Status

Recent actions of the Obama administration in the last two years had the effect of encouraging the parents of tens of thousands of minors to send their children across the United States’ borders illegally. There is great debate about how to stop this flow of illegal immigration, and what to do with those minors now present in the United States. These unaccompanied juveniles, many of whom have been either orphaned, abandoned, suffered domestic violence, or even have been the targets of gang violence or organized crime, are especially vulnerable. Most of these children are also ineligible to receive assistance from their countries of origin, and thus have been sent to the United States for greener pastures, where instead many of them end up being apprehended by local law enforcement or Immigration Customs Enforcement (ICE) who holds them with an immigration detainer in anticipation of removal (deportation) proceedings.

This is a process for these same juveniles who have been neglected, abused, or abandoned by their parents to potentially obtain Permanent Resident status (obtaining a “green card”) through a federal law known as Special Immigrant Juvenile Status (SIJS) wherein the Immigration and Nationality Act (INA) § 203(b)(4) allocates a percentage of immigrant visas to individuals considered “special immigrant juveniles.” This is indeed a relatively quick route to a green card for children who qualify, however, the process IS very complicated and should be done with the assistance of an immigration experienced attorney.

Because the application process must be started while the child is still a juvenile, or minor under state law (18 in most jurisdictions), it is important for people such as teachers, counselors and other people who regularly work with youth to identify potential youth who may qualify for this status, before they reach an age where they are too old to benefit from this special law.

STEP ONE: STATE COURT FINDING OF NEGLECT, ABUSE, OR ABANDONMENT.

A child is eligible for SIJS only if a court in the state where he lives finds the child to be neglected, abused, or abandoned by one of both parents, and that it is not in the child’s best interest to return to his or her home country. The court must either make the child a ward of the state (court dependent) or place the child in the custody of a guardian, state agency, or family member dependent on a juvenile, family, a similar state court or other institution. Court terms, procedures, and legal standards will vary from state to state, as well as which kinds of courts can make such a determination. Also, the legal standard for abuse, neglect, or abandonment is a question of state law and thus differs from state to state. This is just one of many reasons why it is imperative to find an experienced immigration attorney to assist in this process.

STEP TWO: PETITON FOR SPECIAL IMMIGRANT JUVENILE STATUS.

Once a court has found that the child, who is not in removal proceedings, was either abused, neglected, or abandoned, and that it is not in his or her best interest to return to his or her home country, the child may file Form I-360 ( Petition for Ameraisian, Widow(er), or Special Immigrant) with USCIS requesting Special Immigrant Juvenile Status. It is also important to note that the child must file the petition while the court order is still in effect. In many cases, this means that the child must file the petition before turning 18 years old.

USCIS will review the I-360 and the other evidence to determine whether the child qualifies for Special Immigrant Juvenile Status. If USCIS believes that more evidence is needed, it may issue a “request for evidence.” The officer reviewing the file should accept the findings of the judge as to whether the child was abused, neglected, or abandoned. However, the officer may decline to grant SIJS status based on a belief that the court order was obtained only for the purpose of immigration. USCIS is required to make a decision on the petition within 180 days from the time it was submitted.

STEP THREE: APPLICATION FOR PERMANENT RESIDENCY.

Once the juvenile has an approved I-360, they can proceed with an Adjustment of Status application. The Form I-485 (Application to Register Permanent Residence or Adjust Status) may be submitted at the same time as the I-360 Petition, if it is ready at the time. However, USCIS will not make a decision on the I-485 unless and until it grants Special Immigrant Juvenile Status to the child.

Special Immigrant Juveniles may also ask USCIS to waive the application fee. This is done by using form I-912, Request for Fee Waiver. Otherwise, the green card process is similar to the process for family-based adjustment of status cases.

Once the Form I-485 is filed, the juvenile may also apply for employment authorization pursuant to the pending adjustment of status application. Juveniles who adjust status as a result of an SIJ classification enjoy all benefits of lawful permanent residence, including eligibility to naturalize after five years. However, they may not seek to confer an immigration benefit to their natural or prior adoptive parents under this law.

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