By Robert L. Reeves & Nancy E. Miller
Being trapped in the immigration maze is frustrating and frightening for an adult. It can be even worse for a child – especially if the child cannot turn to her parent for a solution. But there is help for children in this situation. The visa classification of Special Immigrant Juvenile Status (SIJS) allows children to apply for a green card under certain circumstances. Not only is this beneficial to the child but it also, ultimately, allows the child to be adopted without having to jump through the Hague “hoops”!
SIJS is for children who have been abused, abandoned or neglected. Because of this, if the child is a SIJS beneficiary, she can never petition for her biological family. The child must be in the United States and can be, but does not have to be, in removal proceedings.
The criteria for eligibility are: that the child must have some history of abuse, abandonment or neglect; the child must either have or be able to file a case in State Court; the child must be unmarried; and be present in the United States and be admissible for adjustment of status. “Abuse”, “abandonment” and “neglect” are terms of art (meaning they have special meanings) and should be discussed with an immigration attorney who is knowledgeable in this area of law.
The procedure is a three step process.
First, the child must be under the jurisdiction of the State Court. This can mean the Probate Court (including Guardianships), Dependency Court, Delinquency Court, Family Court or an Adoption Court. Some courts can only keep jurisdiction until the child turns 18. Other courts keep jurisdiction until the child turns 21. This is important because the State Court must have jurisdiction over the child in order to make necessary findings for SIJS eligibility. The Court’s order must state that the child is under the jurisdiction of that court; that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and that it is not in the child’s best interest to be returned to their home country.
If the child is in Dependency or Delinquency court, she is a ward of the court. If the child is in any other court, the judge will need to appoint a guardian for the child. The guardian can be the person with whom the child will ultimately live. In fact, the child may be living with that person now. And, the child may be related to that person as long as the person is not the biological parent. The guardian does not need to have legal immigration status.
Once the SIJS order is obtained, the next step is for the child to file a self-petition for SIJS status. This petition must be adjudicated within 180 days of filing.
The third step is for the child to apply for adjustment of status (a green card). If the child is in proceedings, the case can be completed in court. If the child is not in proceedings, the adjustment can be completed through the U.S. Citizenship and Immigration Services (USCIS). As stated above, the child must be eligible to adjust. However, special provisions are made for SIJS children. SIJS children are deemed paroled into the United States for purposes of adjustment so it does not matter if the child entered without papers or if the visa expired. Many grounds of inadmissibility can be waived or are not considered at all. The only exceptions are adult criminal convictions and certain drug charges.
Once the child is granted a green card under SIJS, she may be adopted without having to go through the Hague Process. If the child is adopted by a United States citizen, the child may acquire U.S. citizenship upon the completion of the adoption.
The SIJS requirements are very specific and, for that reason, an adult who is interested in helping or adopting a juvenile immigrant should consult with an immigration law firm with experience in these matters.
