Non-citizen children who have been neglected, abused, or abandoned by a parent may be able to get a green card (U.S. lawful permanent residence) through "Special Immigrant Juvenile Status" (SIJS) This article explains the application process for SIJS for children who are not currently in removal proceedings. For more information about eligibility and advantages and disadvantages, please read Nolo’s article "Special Immigrant Juvenile Status: Who Is Eligible."
Step One: State Court Finding of Neglect, Abuse, or Abandonment
A child is eligible for Special Immigrant Juvenile Status only if a court in the state where he or she lives finds the child is neglected, abused, or abandoned by one or both parents, and that it is not in the child's best interest to return to his or her home country. Court terms, procedures, and legal standards vary from state to state.
Types of State Court Proceedings
A child who deserves Special Immigrant Juvenile Status most often makes it into the court system in one of these three ways:
- A family may be reported to the police or child welfare agency because of abuse or neglect of children. Such a case may enter the juvenile court system in order to determine whether the child should be made a ward of the state or placed with a private guardian. A government attorney will handle the case. If the child does not yet have legal, permanent immigration status in the U.S., the child or interested adults should ask the attorney to consider Special Immigrant Juvenile Status when presenting the case.
- A nonabusive parent or other family member may petition for custody in family court as part of a divorce or paternity case, alleging abuse, neglect, or abandonment by the one of the parents. In this situation, the person seeking custody would usually need to hire a private attorney. The judge might also ask that a separate attorney called a "Guardian ad Litem" (GAL) meet with the child and the family. The GAL will make a report to the judge about the family situation and the best interests of the child.
- A family member or friend may petition in court to be the legal guardian of the child. This option is often used when the parents have left the child with a friend or relative, and have stopped taking care of the child, but no reports have been made to police or child welfare authorities. In many states, this is done in probate court. As with a custody case in family court, the potential guardian can hire a private attorney, and the judge may appoint a "Guardian ad Litem."
Common Procedures to Obtain a State Court Finding of Abuse, Abandonment, or Neglect
Whichever process is used, the attorney will need to bring the abuse, neglect, or abandonment to the attention of the court, and will need to show the judge that it is not in the child's best interest to return to his or her home country.
The child and family members can expect to be interviewed and may need to testify in court. As much evidence as possible should be gathered to show the abuse, neglect, or abandonment — for example, medical records and reports by police, teachers, or social workers. Affidavits may be needed from witnesses in the child's home country, also.
The court process can take many weeks. Most states require advance notice to the parents and the child about the court proceedings. Special rules may apply for serving notice on parents outside the United States. The court will also need time to appoint a Guardian ad Litem (GAL), and then the GAL will need to schedule a home visit. The court may also order a background check.
Step Two, Petition for Special Immigrant Juvenile Status
Once a court has found that the child was abused, neglected, or abandoned, and that it is not in his or her best interest to return to his or her home country, the child may file a petition with USCIS requesting Special Immigrant Juvenile Status. This is done using Form I-360, available from the USCIS website, with accompanying documents including a birth certificate (or other proof of age) and copies of the court order of dependency, custody, or guardianship. There is no fee for filing this application.
The child (or someone acting on his or her behalf) must fill out all relevant portions of the petition. This same petition is used for many other immigration procedures, so read the from instructions carefully to see which parts apply to Special Immigrant Juveniles. Children over age 14 must sign the petitions themselves, younger children may have a parent or guardian sign (for example: "Jane Littleton by her guardian Joe Biggs").
The child must file the petition while the court order is still in effect. In many cases, this means that the child must file the petition before turning 18 years old.
USCIS will review the I-360 and the other evidence to determine whether the child qualifies for Special Immigrant Juvenile Status. If USCIS believes that more evidence is needed, it may issue a "request for evidence." The officer reviewing the file should accept the findings of the judge as to whether the child was abused, neglected, or abandoned. However, the officer may decline to grant status based on a belief that the court order was obtained only for the purpose of immigration.
USCIS is required to make a decision on the petition within 180 days from the time it was submitted.
Step 3, Application for Permanent Residency
The Form I-485 "Application to Register Permanent Residence or Adjust Status" may be submitted at the same time as the I-360 Petition, if it is ready at the time. However, USCIS will not make a decision on the I-485 unless and until it grants Special Immigrant Juvenile Status.
Special Immigrant Juveniles may ask USCIS to waive the application fee. This is done by using for I-912, request for fee waiver. See the section of instructions for that form about Special Immigrant Juveniles. Otherwise, the green card process is similar to the process for family-based visas. See Nolo's article "When and How to Submit an Adjustment of Status Packet to USCIS."