Non-citizen children and some young adults who are in the United States and have been neglected, abused, abandoned, or something similar by a parent might be able to get a green card (U.S. lawful permanent residence) through what's called "Special Immigrant Juvenile Status" or "SIJS." This can be a relatively direct route to a green card for children who qualify. However, the process is complicated, often lengthy, and best done with the help of an attorney.
For the law on this topic, go to I.N.A. § 101(a)(27)(J); 8 C.F.R. § 204.11.
Because the application process must normally be started while the child is under age 21 and unmarried, it is important to identify children and youth who might qualify for this status before they are too old to benefit. Teachers, counselors, social workers, and youth probation officers should become aware of this possibility.
Here, we'll discuss:
Some advantages to obtaining Special Immigrant Juvenile status include that the child does not need to have entered the U.S. legally and does not need to show any means of financial support—both of which are barriers to most other types of green card approvals, because they make the applicant "inadmissible." (For more information about this issue, see Inadmissibility: When the U.S. Can Keep You Out.) In fact, most other grounds of inadmissibility do not matter for Special Immigrant Juveniles.
Also, Special Immigrant Juveniles were one of only a few types of immigrants who are eligible to have the fee for a green card application (USCIS Form I-485) waived upon request; and after April 1, 2024, won't even have to make the waiver request. (They'll be automatically exempt.)
A disadvantage of the SIJS green card option is that a child who is granted Special Immigrant Juvenile Status is never legally permitted to file any immigrant petition for either parent. Thus, even if only one parent was abusive or neglectful, the child will still never be able to petition for the non-abusive parent to get a green card. For purposes of immigration, it is as if the child were an orphan.
And there are some aspects of the process that can make prospective guardians worry, particularly if they themselves undocumented. (Not uncommon if the child is being cared for by more distant family in the United States.) The prospective guardians might be required to undergo background checks (including fingerprinting) and a home study, and pay various fees. The family court judge isn't in charge of enforcing U.S. immigration laws, but if, for example, the prospective guardian has a prior removal (deportation) order on file, the judge will be naturally concerned that the guardian might be at risk of leaving the United States.
To meet the basic qualification for Special Immigrant Juvenile Status:
The above decisions must be handled by a judge in a court in the state where the child lives, not by U.S. immigration officials. Which kinds of courts can make such a determination, and what the legal standard is for abuse, neglect, or abandonment is a question of state law and differs from state to state. Commonly, juvenile or youth offender courts, family courts, and probate courts can issue such orders.
However, the title of such courts and their powers vary from state to state. This is one reason why it is an excellent idea to find a lawyer to assist in this process.
Under typical state laws, abuse is said to involve physical injury that threatens life or health. It doesn't mean spanking or other corporal punishment.
Neglect has more to do with providing a minimum level of care or supervision despite having the financial means to do so. (Poverty by itself is not neglect.) It can involve using alcohol or drugs in the child's presence, leaving the child alone, or engaging in excessive corporal punishment.
Abandonment means when parents intentionally give up parental rights, for example by having minimal or no meaningful personal contact, refusing to provide financial support, and so on. Depending on the specifics of state law, it might still be alleged even after the child turns 18 and is no longer considered a minor.
This standard will also be determined by state law, but typically involves looking at the big picture of how the child's life would be impacted if refused U.S. permanent residence. Consider what would happen if the child were returned to the country of origin, in terms of safety, access to education, access to medical care, the presence of family and other support systems, and any history of traumatic experiences or personal dangers there.
Also consider how staying in the United States could benefit the child, in terms of educational and career goals, a stable family life once the custody or guardianship is established, and so on.
Only after obtaining documentation of the above can one proceed to the immigration portion of the application process for Special Immigrant Juvenile Status, by seeking I-360 petition approval and eventually a green card (adjustment of status) from U.S. Citizenship and Immigration Services (USCIS).
SIJS is a complex portion of U.S. immigration law, with overlays with other types of law. It's well worth consulting an experienced attorney for a full analysis of your case's potential to win, and potentially assistance with the application process. A child who is placed into removal proceedings before an immigration judge should absolutely hire an attorney.