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EB-4 Special Immigrant Juveniles
Child abuse is pervasive, prevalent, and prone to taking root in marginalized spaces. Migrant populations are, unfortunately, far too often marginalized in such a manner, and so there exists the very real problem of children subject to both the stresses of integration into an entirely new society and the abuses of violent, neglectful, or otherwise absentee parenting.
Such a circumstance can create a legal ‘black hole’, where the child has no effective legal guardian to assist in navigating the immigration system and lacks the legal agency to do so themself. The Special Immigrant Juvenile (SIJ) classification exists as a remedy to such impossible situations. This classification serves as an off-ramp from the juvenile courts system, providing a pathway to Lawful Permanent Residency with a Green Card.
To qualify for this status, the child must first be subject to the juvenile court system. Referral to these courts usually follows an official finding of abuse, neglect, or abandonment on the part of one or both parents (or legal guardian(s)), as determined by a state agency with appropriate jurisdiction. The reporting agency will then transact the case to a court specializing in areas such as dependency, delinquency, probate or family law – these make up the ‘juvenile court system’.
Once referred to such a court, eligibility for SIJ protection is as follows:
1. Be under 21 years of age at time of filing the SIJ petition (note that it is not required that the petition be adjudicated before the petitioners 21st birthday, only that is must be submitted prior to);
2. Be unmarried;
3. Be physically present in the United States; and
4. Have an order from a juvenile court that makes the following three findings:
DEPENDENCY/CUSTODY: Declares the child dependent on the court, or legally places the child under the custody of an agency or department of a state, or an individual or entity appointed by a state or juvenile court.
-Temporary orders are generally not sufficient.
PARENTAL REUNIFICATION: Reunification with one or both of the child’s parents is not viable because of abuse, neglect, abandonment or a similar basis under state law.
-“Not viable” generally means the child cannot be reunified with his or her parent(s) before the age of majority.
-The abuse, neglect, abandonment or similar basis under state law may have occurred in the child’s home country or in the United States.
BEST INTEREST: It would not be in the child’s best interest to be returned to his or her country of origin
Must be seeking to enter the U.S. solely to work as a minister or religious vocation or occupation which relates to traditional religious functions
Must have worked in such vocation, professional work or other work continuously for at least a 2 year period (voluntary service does not meet this requirement). The work must be continuous, but need not be full-time. It does not matter if the work was in or outside of the U.S.
ELIGIBILITY
To qualify for this status, the child must first be subject to the juvenile court system. Referral to these courts usually follows an official finding of abuse, neglect, or abandonment on the part of one or both parents (or legal guardian(s)), as determined by a state agency with appropriate jurisdiction. The reporting agency will then transact the case to a court specializing in areas such as dependency, delinquency, probate or family law – these make up the ‘juvenile court system’.
Once referred to such a court, eligibility for SIJ protection is as follows:
1. Be under 21 years of age at time of filing the SIJ petition (note that it is not required that the petition be adjudicated before the petitioners 21st birthday, only that is must be submitted prior to);
2. Be unmarried;
3. Be physically present in the United States; and
4. Have an order from a juvenile court that makes the following three findings:
DEPENDENCY/CUSTODY: Declares the child dependent on the court, or legally places the child under the custody of an agency or department of a state, or an individual or entity appointed by a state or juvenile court.
-Temporary orders are generally not sufficient.
PARENTAL REUNIFICATION: Reunification with one or both of the child’s parents is not viable because of abuse, neglect, abandonment or a similar basis under state law.
-“Not viable” generally means the child cannot be reunified with his or her parent(s) before the age of majority.
-The abuse, neglect, abandonment or similar basis under state law may have occurred in the child’s home country or in the United States.
BEST INTEREST: It would not be in the child’s best interest to be returned to his or her country of origin
Must be seeking to enter the U.S. solely to work as a minister or religious vocation or occupation which relates to traditional religious functions
Must have worked in such vocation, professional work or other work continuously for at least a 2 year period (voluntary service does not meet this requirement). The work must be continuous, but need not be full-time. It does not matter if the work was in or outside of the U.S.
PROCESSING THE CLASSIFICATION REQUEST
Given the reality that juvenile courts are grossly underfunded and lacking in many of the resources necessary to carry a case such as an SIJ request through the immigration legal system, its all upon intermediary advocates such as Child Welfare Professionals and Legal Advocacy Organizations to refer qualifying cases to an immigration attorney or accredited professional capable of aligning the child’s interest with both juvenile court and immigration system stakeholders.
Assessments and reports compiled by a Child Welfare Professional, often in conjunction with an attorney who has taken the case up, can help establish a child’s eligibility under the standard described previously. Documentation and evidence must also be assembled, from a wide variety of sources that are not always responsive to requests.
It is necessary to assemble a robust case on behalf of the client/child before filing Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, because USCIS makes its determination of eligibility based on evidence provided by a juvenile court order. Many state’s suffer from juvenile court systems that are largely dysfunctional, following decades of disinvestment. Documents and filings may be provided incomplete, insufficient, or incorrect entirely.
Along with Form I-360, written consent must be provided by the U.S. Department of Health and Human Services if the child is in the custody of HHS (this often being the case). The instructions for requesting this written consent can be found at ACF (hhs.gov). They are not for the faint of heart.
Once the submission package is carefully assembled and readied, it can be transmitted to USCIS for a judgement. A Notice of Action will be generated by USCIS indicating that they have received the application, and an RFE may be issued if the immigration agent reviewing the case requires more information or clarification on anything
SECURING LAWFUL PERMANENT RESIDENCY
Once USCIS rules affirmatively on an SIJ classification (usually within 180 days, unless further evidence is requested), the child becomes eligible to apply for a Green Card by way of Form I-485, Application to Register Permanent Residence or Adjust Status. The immense effort necessary to get to this point should not be underestimated; there is nothing easy about this sort of thing.
Once the applicant receives their Green Card (issued through the EB-4 visa category for special immigrants, so availability and priority dates will apply), they may be able to move pass this ordeal, with hope. It should be noted that any parent or guardian that was sanctioned by having their parental rights terminated by a juvenile court are forbidden from enjoying any immigration benefit on behalf of the freshly-minted Green Card holder. However, there are options available to bring family members that were not part of the original abuse and/or neglect through the standard family-based Green Card provisions (which can be read about in further detail here.)
Questions on behalf of state juvenile courts and state- and county-administered child welfare agencies may be directed to USCIS at USCIS-IGAOutreach@uscis.dhs.gov. Requests to speak with a USCIS representative about the SIJ classification may also be submitted to that address.
Questions about an ongoing USCIS case may be directed to (800) 375-5283; an INFOPASS appointment in regards to an open case can be scheduled with the automated scheduler found at https://infopass.uscis.gov.
And finally, concerns or information about human smuggling or trafficking activities can be reported to 866-DHS-2423.
