Immigration Options for Teenagers Without Lawful Status
A look at two of the main options for young undocumented persons: DACA and Special Immigrant Juvenile Status.
Many young people who were born in foreign countries are living in the U.S. without legal immigration status. These youth are often referred to as “DREAMers” because of proposed legislation to offer them immigration status known as the DREAM Act. The DREAM Act hasn’t passed yet, however, and in the meantime, these youth are subject to the same immigration laws as those who entered the U.S. as adults. However, besides the usual paths to a green card, certain special immigration benefits exist that are only available to children and young adults.
This article will compare the two most significant options for immigrant youth: Deferred Action for Childhood Arrivals (DACA) and Special Immigrant Juvenile Status (SIJS). Either option will allow a qualified applicant to live and work in the U.S. legally, within a few months of applying. However the qualifications, procedures, costs, and results are different.
What Is DACA and Who Will Qualify?
More young people will qualify for DACA than for SIJS. However, not all young people will qualify. DACA is available only to people who have been in the U.S. since childhood and who arrived before a certain date. For more in-depth information about DACA eligibility guidelines, see Nolo's article "Who Qualifies for Deferred Action?"
Some Advantages to Applying for DACA
There are a number of positives about the DACA program, including the ease of application. For example:
- The eligibility criteria for DACA are broader than for SIJS, which requires a showing of parental abuse or neglect and is only available to minors.
- A person who meets the DACA qualifications will not "age out," that is, lose eligibility as he or she gets older. Many adults, even some in their 30s, will qualify for DACA. The applicant must, however, have been under age 31 as of June 15, 2012.
- Compared to SIJS, DACA is quick and simple to obtain. It is a one-step application, which USCIS will usually grant or deny within a few months. Many people are able to successfully assemble a DACA application on their own. For more information, see Nolo's article "Deferred Action for Young Immigrants: Application Process."
- Unlike SIJS and other processes for obtaining a green card, the DACA application requires very little information about the applicant's family. In many cases, a person can apply for DACA without revealing names or addresses of other relatives who may be living in the U.S. without status.
- Allows recipients to obtain a work permit. DACA is one of only a few ways that a person who is not eligible for a green card can get employment authorization. This allows for a real Social Security Number, and (in most states) the opportunity for a driver's license.
- Unless a person has a record of criminal convictions, the qualifications are straightforward and can be shown by evidence that is easy to obtain, such as school records. An applicant needs to show school enrollment or graduation, and that he or she has been living in the U.S. and present for the required time periods since age fifteen.
- Applying for DACA will not affect other pending or potential applications for immigration benefits. A person can get DACA (and a work permit) while working on other long-term immigration processes such as family visa petitions.
- There is currently no deadline for submitting an application, though U.S. Citizenship and Immigration Services (USCIS) may later decide to set a deadline or discontinue the DACA program.
Disadvantages to Applying for DACA :
There are also a number of negative aspects to the DACA option. Here are some common criticisms:
- Not available to people without a high school diploma or GED, unless they are currently enrolled in a school or other qualifying educational program.
- Not available to anyone who currently has legal status in the United States. A person who is still in valid status on a student or tourist visa, for example, cannot apply for DACA.
- DACA gives few long-term rights and no real legal status to undocumented youth. There is no path to a green card or citizenship for DACA grantees.
- While USCIS will grant DACA initially for two years and can be renewed in two year increments. However, since DACA is an executive branch program and not immigration law, there is no guarantee the program will continue indefinitely.
- DACA does not qualify a person for government benefits that depend on legal U.S. immigration status, such as housing, food assistance, or federal student financial aid.
- Some states will not allow DACA grantees to apply for driver’s licenses.
- DACA does not initially give the opportunity to leave and legally re-enter the U.S., though a person with DACA may request “advance parole” from USCIS to travel outside the country and return in certain circumstances. See “DACA Recipients: How to Apply for a Travel Document (Advance Parole).”
- Almost everyone must pay the application fee for DACA. The only exception is for people who are homeless and very poor.
- DACA benefits do not extend to family members. A person with DACA cannot sponsor a spouse or any other relatives for a legal U.S. immigration benefit, such as a visa or a green card.
What Is Special Immigrant Juvenile Status (SIJS) And Who Will Qualify?
SIJS offers the possibility of U.S. lawful permanent residence (a green card) to children and youth who have been abused, neglected, or abandoned by one or both parents. To qualify, a person must have a court order showing abuse, neglect, or abandonment, and the order must also indicate that it is not in the minor's best interest to return to his or her home country. For more information, see Nolo's article "Special Immigrant Juvenile Status: Who is Eligible."
Some Advantages of SIJS Over DACA
While SIJS is narrowly tailored to apply to a select group of juvenile immigrants, there are a number of advantages to applying for this immigration status:
- All paperwork is either free to file, or fee waivers are available.
- Unlike DACA, SIJS is a path to a green card, and later citizenship. With a green card, a person can travel to other countries and return without asking special permission, live and work in the U.S. permanently, claim some government benefits, receive federal student financial aid for college, serve in the U.S. military, and sponsor a spouse and children for green cards.
- A person does not need to be undocumented or out-of-status to apply for SIJS.
- The SIJS applicant does not need to have lived in the U.S. for any particular length of time.
- The applicant need not be enrolled in school or have a high school diploma or GED. The employment authorization card granted to SIJS applicants for a green card will be accepted by all states as proper identification for obtaining a driver's license or state ID.
Disadvantages of SIJS
The eligibility criteria for Special Immigrant Juvenile Status match only a narrow group of people. There are other disadvantages, which include:
- Obtaining SIJS involves a complex, multi-step process, beginning with a court case in state court. Most people will need an attorney to navigate the state court procedures and to complete the petition for SIJS. For more information, see Nolo's article "Special Immigrant Juvenile Status: Application Process."
- Strict age limits apply for SIJS. In most cases, the state court order must be entered before the applicant’s 18th birthday, and the entire USCIS petition and application process must be completed before the youth is 21 years old.
- The qualifications are not as straightforward as for DACA. The standards used to show "abuse, neglect, or abandonment" differ from state to state and from court to court. This is why it is especially important to get an experienced immigration attorney to help you.
- A young person who receives a green card based on SIJS can never sponsor either parent for a green card. This is true even if only one parent was abusive and the other parent has always treated the child well.
- When applying for a green card, the applicant will need to provide information about family members who may be undocumented.
Which Option Is Better If I Qualify for Both?
Whether DACA or SIJS is the more suitable option will depend on your specific situation. Some things to think about include:
- If you think you qualify for SIJS, you may need to act quickly to get all the steps done before you "age out." If you do "age out" you can fall back on DACA.
- If you think you will want federal student financial aid, want to serve in the military, or want to apply for government benefits, these are possible with a grant of an SIJS-based green card, but not with DACA.
- If you want to be able to sponsor a spouse or a child for a green card, this is also possible with a grant of SIJS, but not with DACA.
- If you are concerned about revealing information about your parents or other relatives to the government, you can complete a DACA application without including information about relatives.
- If you want to be able to sponsor your own mother or father for a green card some day, a grant of SIJS will prevent you from doing so. DACA does not give you the right to sponsor any relatives, but it also does not prevent you from sponsoring relative if you later get a green card some other way.
For a personal analysis of your situation, see an experienced immigration attorney.