Special Immigrant Juvenile Status (SIJS) – Guardianship

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Special Statuses

Description

Special Immigrant Juvenile Status (SIJS) classification is granted to certain undocumented minor children that are currently in the United States who have experienced abuse, neglect, and/or abandonment by one or both parents. These minor children must adhere to strict eligibility requirements in order to successfully navigate through this multi-step process to obtain permanent resident status in the United States. To qualify for SIJS, the minor child must be under the age of 21 years old at the time of filing of a special immigrant petition with U.S. Citizenship and Immigration Services (USCIS), be unmarried, and have a valid custody order from a state juvenile court finding that the minor is in the custody of an individual appointed by the court, that reunification with one or both parents is not viable due to abandonment, abuse, and/or neglect, and that it is not in the minor child’s best interest to be returned to his or her country of last habitual residence.

In a situation where the minor child cannot be physically and/or legally cared by one or both parents, the minor child may be placed under the care of an interested third party such a family member and/or a caregiver. Guardianship is granted to a person that can act on behalf of the minor child and care for the minor child, both legally and physically. Guardianship does not take away parental rights but offers a temporary guardian to look out for the minor child during the parents’ absence. Although the state juvenile court follows similar legal procedures for both custody and guardianship cases, the final legal outcome differs. There may be circumstances where the interested third party is a grandparent, and they may be exempt from the standard juvenile court legal procedures. Therefore, a grandparent may initiate a guardianship case and be granted permission to amend pleadings for custody rights, revoking all parental rights and allowing the grandparent to claim legal and physical rights over the minor child.

The Office of Refugee Resettlement (ORR) contacts the third party to identify relationship and authorize the release of the minor child. The third party must legally establish guardianship for the minor child to initiate the process of obtaining SIJS classification with the United States Citizenship and Immigration Services (USCIS). The third party will initiate the family case by filing a petition for guardianship with a state juvenile court that has jurisdiction over the minor child’s best interests, generally the place of residence. The guardianship petition is filed against the minor child’s biological parents. Depending on the state, a court may have jurisdiction over the minor child until 18 or 21 years of age. Therefore, it’s important to act quickly and to ensure proper processing of a guardianship determination under SIJS requirements as it may differ from state-to-state. All filings with the state juvenile court should support a ruling that finds the minor child dependent and placed under the care of an interested parent under the basis that reunification with both parents is not possible due to abuse, abandonment, and/or neglect and return to a country of last habitual residence is not a viable option.

Once the state juvenile court grants guardianship over the minor child, the minor child can submit a special immigrant petition with USCIS. To be eligible, the minor child must be under the age of 21 years old at the time of filing the petition. All supporting documentation should reference the requisite guardianship order and any immigration records related to apprehensions, detentions and/or deportation proceedings. Although a minor child may be granted SIJS status by USCIS, a juvenile visa is must be available for the minor child to apply for adjustment of status, a green card. Unfortunately, some minor children incur a longer wait time until a visa becomes available based on the number of visas allocated per year to certain countries. In the case of a minor child who “ages out” (turns 21 years old) before his or her visa is available, the minor child retains his or her SIJ status if he or she filed the petition prior to turning 21 years old.  In cases where a minor child will face a significant wait time for visa availability, USCIS may grant the minor child deferred action for a period of 4 years. A minor child who has been granted deferred action by USCIS may apply for an employment authorization document (EAD).

Unfortunately, all immigration courts are currently experiencing a significant delays and court hearings may not be available immediately upon release from a detention center. Therefore, the minor child’s guardian must periodically check with the immigration court’s hotline and/or database to attentively act on any pending hearings. In a situation where the minor child has deportation proceedings pending before an immigration court, the process of filing additional motions and/or attending hearings may be required to terminate and/or dismiss pending proceedings.

Upon USCIS’ approval of SIJS classification and availability of a visa, the minor child may apply for adjustment of status. Under SIJS classification, minor children are exempt from certain grounds of inadmissibility that facilitate the process of obtaining a green card. The minor child may simultaneously file for an employment authorization document (EAD) while green card application is pending. USCIS generally reviews and issues a decision without the need to interview the minor child in person at a local field office. Unless an interview is required, the minor child will receive a green card in the mail and be granted lawful permanent resident (LPR) status.

Benefits

The filing or the approval of a special immigrant petition does not grant the minor child status or an immediate immigration benefit in the United States. The minor child must successfully navigate through the multi-step process, which in some cases may incur a lengthy wait time, to obtain approval of an adjustment of status and receive a green card. The minor child may also request an employment authorization document (EAD) and receive a social security while the application for adjustment of status is pending.

Derivative Dependents

SIJS classification protects undocumented minor children. Therefore, no derivative dependents will be eligible under this classification. Once the minor child navigates through the SIJS multistep process and obtains U.S. citizenship, sponsorship may be permitted and limited to spouses, children, and siblings only. However, sponsorship for parents is not permitted as it violates conditions established under SIJS classification.

Process Description

Obtaining lawful permanent residence under SIJS classification is a multi-step process that involves agencies such as a state juvenile court, the United States Citizenship and Immigration Services (USCIS), Executive Office for Immigration Review (EOIR) and the U.S. Department of State.

Depending on the state juvenile court, a guardianship case may generally take at least 8-10 months to be processed and approved, depending on various factors. Easier processing can be achieved if the accused parties’ whereabouts are known, and services of court documents are feasible. If the minor child is close to achieving the age of majority in his or her jurisdiction, an expedited process may be required. In the case where a visa is not available and the minor child can only file a SIJS petition with USCIS, the wait time is generally at least 4-6 months. If the minor child is eligible to file for adjustment of status concurrently to the SIJS petition, a decision may be obtained within at least 12 months. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact). Unfortunately, if the minor child does require additional processing at an EOIR level, the wait time to obtain termination and/or dismissal of deportation proceedings may vary from court to court.

Unfavorable Circumstances

Under SIJS classification, minor children are exempt from certain grounds of inadmissibility related to the public charge, unlawful presence permanent bars, fraud or misrepresentation, etc. However, criminal convictions and other serious criminal involvement may negatively impact the eligibility process under SISJ classification. In certain circumstance a waiver may be required under certain grounds of inadmissibility. Although, some factors may not necessarily cause the denial of a petition, it is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish best course of action. A licensed attorney may be able to assess the minor child’s circumstances accordingly to the law and restrictions.

Relevant Links List

Name Description Website
DoS Visa Bulletin Board This website contains details regarding the U.S. Department of State (DoS) visa availability based on relief categories. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
USCIS Processing Times Website contains details regarding immigration cases processing times. https://egov.uscis.gov/processing-times/
USCIS SIJS Classification and Deferred Action Website contains additional information regarding U.S. Citizenship and Immigration Services (USCIS) Deferred Action for Special Immigration Juvenile Classification. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf

Citations

SIJS petitions are processed and adjudicated under strict eligibility. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable laws and regulations include:

Citations List

Citations Description Section Title
8 CFR § 204.11 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Special Immigrant Status for Certain Aliens Declared Dependent on a Juvenile Court (Special Immigrant Juvenile
8 CFR § 245.1 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Eligibility
INA § 101(a)(27)(J) Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Definitions
INA § 245 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. (Adjustment of Status of Nonimmigrant to that of Person Admitted for Permanent Residence)
8 U.S.C. § 1153 The U.S. Code (USC) contain general and permanent laws of the United States. Allocation of Immigrant Visas
8 U.S.C. § 1255 The U.S. Code (USC) contain general and permanent laws of the United States. Adjustment of Status of Nonimmigrant to that of Person Admitted for Permanent Residence

Forms

Related Forms List

Name Description No. Fee
Petition for Amerasian Widow(er) or Special Immigrant A Petition for Amerasian, Widow(er), or Special Immigrant form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the minor child to obtain Special Immigration classification. The filing fee may be waived for special immigrant juveniles. I-360 $0

Supporting Documents

For an initial filing of a special immigrant petition, documentation may include:

Supporting Documents List

Name Description
Detention and/or Apprehension Records
EOIR Documentation
Notice to Appear
Personal Documentation Personal documentation must be submitted to verify the Sponsor's and Migrant's identity. Personal documentation includes birth certificates, passport biographical pages, identification IDs. All documentation must be in compliance with the U.S. Department of State - Bureau of Consular Affairs which requirements vary by country.
State Court Filings
State Court Orders