For background information about eligibility and SIJS advantages and disadvantages, please read Special Immigrant Juvenile Status: Who Is Eligible.
A child is eligible for Special Immigrant Juvenile Status only if a court in the state where they live finds the child is neglected, abused, abandoned, or something similar, by one or both parents, and that it is not in the child's best interest to return to their home country. Court terms, procedures, and legal standards vary from state to state. The court will need to issue something usually called "special findings" or a "predicate order."
A child who deserves Special Immigrant Juvenile Status most often makes it into the court system in one of three ways:
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 the home country.
The child and family members can expect to be interviewed and might need to testify in court. As much evidence as possible should be gathered to show the abuse, neglect, or abandonment, and the child's relationship to the parent and any proposed guardian—for example, birth certificates, medical records, and reports by police, teachers, or social workers. Affidavits might be needed from the applicant as well as witnesses, including in the child's home country. If the biological parents are willing to sign a form consenting to someone else being appointed guardian, that can move things along significantly. Including articles about conditions in the home country can also be relevant and helpful, for purposes of meeting the "best interests" standard.
The court process can take many weeks. Most states require advance notice ("service of process") to the parents and the child about the court proceedings. Special rules might apply for serving notice on parents outside the United States, with international law overlaps (as will be the case if parents are in one of the countries that has signed onto a treaty known as the Hague Convention on the Protection of Children).
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.
Once the court issues an order, you'll want to make sure it includes enough factual detail to avoid follow-up questions from USCIS. A good lawyer can potentially draft a proposed order for the court to draw from
Once a court has issued an order finding that the child was abused, neglected, or abandoned, and that it is not in the child's best interest to return to the parents' home country or place of residence, the child may file a petition with U.S. Citizenship and Immigration Services (USCIS) requesting Special Immigrant Juvenile Status. This is done using Form I-360, available for free download from the USCIS website, and by including accompanying documents including a birth certificate (or other proof of age) and copies of the court order of dependency, custody, or guardianship.
The child (or someone acting on the child's behalf) must fill out all relevant portions of the petition. This same petition is used for many other types of immigration procedures, so read the from instructions carefully to see which parts apply to Special Immigrant Juveniles (and leave the other sections blank).
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").
Currently, there is no fee for filing the I-360 petition. Look carefully for the filing address, shown on a special USCIS page. The exact address depends on your reason for filing, so click "Special Immigrant Juvenile."
The child is expected to file the petition while unmarried and while the court order is still in effect. In the past, this meant that the child had to file the petition before turning 18 years old. However, new regulations promulgated in 2022 state that if the court order ends only because the child turned 18, the child will have up to age 21 to file the petition.
Be sure to get it into USCIS's inbox BEFORE the child turns 21. Waiting until the child is 21 to submit the petition will not do it. If you're worried about the petition arriving on time (before the child's 21st birthday) by mail, there's a possibility for contacting USCIS and getting an in-person appointment for filing purposes. This is a new procedure, however, so do your best to avoid having to try it.
Another exception to the valid-court-order requirement is made if the child has been adopted, placed in a permanent guardianship, or reached another child welfare permanency goal. And so long as the I-360 petition has been approved, it's okay for the child to get married (a relatively recent change made in recognition of the fact that USCIS backlogs can create an unfairly long wait).
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 can issue a "request for evidence" or RFE. 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 to the United States.
USCIS is supposed to make a decision on the petition within 180 days from the time it was submitted. It has been getting better at doing so; you can check its latest processing times online.
After USCIS approves the I-360, the child might need to wait before taking the next step toward applying for a green card. That's because the child is not eligible until they have a current "priority date," meaning that a visa is available to them in the fourth preference (EB-4) immigrant visa category for special immigrants. (Oddly, this is technically an employment-based category, as are all "special immigrant" visa categories.)
Owing to annual limits and high demand, however, this category has been backed up in recent years, leading to years-long waits between USCIS approval of the I-360 and applicants being able to move forward with a green card application.
Fortunately, applicants with approved I-360s but whose priority dates are not yet current can qualify for a sort of temporary limbo status called deferred action, which comes with protection from deportation and the chance to apply for a work permit. See the USCIS news release and Policy Alert for details. To apply for the work permit (employment authorization or an "EAD") the child will need to submit USCIS Form I-765 and indicate category (c)(14) in answer to Question 27.
Once the priority date is current, the child will need to submit Form I-485 "Application to Register Permanent Residence or Adjust Status" and supporting documents to USCIS. (This may also be submitted at the same time as the I-360 petition if there's no wait in this category, but that hasn't happened lately).
Approval is not automatic. First, applicants must prove that they are not inadmissible (though some grounds of inadmissibility can be waived in SIJS cases, for humanitarian, family unity, or public interest reasons). Applicants must also show that they deserve a favorable exercise of discretion.
Special Immigrant Juveniles could, until March 31, 2024, ask USCIS to waive the I-485 application fee using Form I-912, request for fee waiver. But if possible, it's better to wait until April 1, 2024, at which time this fee exemption becomes automatic.
Otherwise, the green card process is similar to the process for family-based visas. See How to Submit an Adjustment of Status Packet to USCIS.
Obtaining SIJS is a multi-step, complex application process. It's well worth consulting with 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 (deportation) proceedings should definitely hire an attorney for the best chance of success.
]]>Such an amnesty program was offered in the late 1980s, for example. The requirements included that applicants prove they had been living or working in the U.S. for a certain length of time and had good moral character. They first received temporary status, then, after 18 months, could become eligible for green cards, provided they demonstrated that they could speak English.
In recent years, U.S. lawmakers have proposed various bills offering amnesty-like paths to a green card, but couldn't agree on any. In the meantime, some existing laws might allow something similar in rare cases, but not a true, mass amnesty.
A remedy called Non-LPR Cancellation of Removal allows non-citizens who have already been placed in removal (deportation) proceedings to ask the immigration court judge to grant a green card. There are strict eligibility requirements, however, including that:
This remedy cannot be applied for affirmatively, however. One must be in immigration court proceedings first, presumably either after an arrest by U.S. immigration authorities or denial of some other form of immigration application and a referral to immigration court.
There is a program temporarily in place providing for the deferred deportation of certain people who came to the U.S. as children and meet several guidelines (known as Deferred Action for Childhood Arrivals or DACA). This is not a law, but an Executive Order implemented by President Barack Obama. Eligible applicants receive a U.S. work permit.
The Trump Administration attempted to terminate this program, and nearly succeeded. After multiple lawsuits, the situation as of early 2024 is that one cannot submit a new DACA application. Renewals, however, remain an option for people already holding DACA.
For procedural help if and when DACA becomes available again, see Deferred Action for Childhood Arrivals (DACA): Application Process.
The chances of an upcoming amnesty or path to a green card depend on the U.S. Congress, but nothing is on the horizon as of early 2024. If anything, Congress has been focused on making life more difficult for undocumented immigrants, as have some states such as Florida and Texas. (See, for example, Is It Illegal to Transport an Undocumented Immigrant Within the U.S.?.) Keep your eyes on the news for changes.
Beware of the many scammers or fake lawyers who urge immigrants to pay to submit an application during a time when no such application exists. Whenever a new bill comes up in Congress, and its opponents claim (often inappropriately) that it is an amnesty, the scammers tend to seize the opportunity to start collecting money and filling out fake “applications” on immigrants behalf.
If you hear news of an amnesty, be sure to choose a highly qualified immigration attorney to evaluate your situation and help you apply. Or, the attorney might be able to identify another immigration benefit or remedy you could apply for.
]]>The answer is not a simple one, for the reasons laid out below.
U.S. immigration law allows U.S. citizens to petition for their parents (among other family members) to receive green cards; but only after the U.S. citizen child turns 21. Staying in the United States without legal permission for all that time could be difficult and lead to negative immigration consequences.
Leaving the U.S. with the child is the safer option, if one is willing to embark on a long-term plan of having the child return as an adult and then petition for the parents. But since the subject of this article is whether the U.S. citizen child can help the parents avoid deportation, that's a topic that we're assuming isn't as relevant or attractive to readers.
Anyone who entered the U.S. illegally (without inspection) faces further complications in seeking to obtain a green card through family.
When the child turns 21 and petitions for them, they won't be able to stay in the United States to complete the green card application through the process known as "adjustment of status." (Only parents of U.S. citizens whose last entry to the U.S. was a legal one can do that.) Instead, they will need to go to a visa interview at a U.S. consulate.
The consular officer will then inquire as to whether each parent is "inadmissible" on various grounds; in particular, for having spent more than 180 days (six months) in the U.S. illegally while over the age of 18. If so, the person might be barred from the U.S. for either three or ten years. See How soon can the U.S.-born child of an undocumented immigrant petition for the parent? for additional discussion of this issue.
Some people can potentially apply for a waiver of the unlawful presence ground of inadmissibility, but only if they can prove that being denied the visa would cause extreme hardship to their own U.S. citizen or lawful permanent resident parents or spouse or U.S. citizen fiancé. Hardship to U.S. citizen children does NOT count in this context.
After turning 21 and petitioning for the parents, the child will need to be living in the United States and earning enough money to serve as the parents' financial sponsor, in order to ensure that they will be supported at a level that takes them 125% or more (in most cases) above the U.S. Poverty Guidelines. That could be a tall order for a child of that age. But it could be overcome if the family has enough assets to make up the difference.
Another relevant government policy you might have heard of is known as “prosecutorial discretion” (PD) or "deferred action." Because U.S. immigration enforcement authorities (“ICE”) cannot deport everyone, they typically concentrate their efforts on high priority cases such as criminals, and drop the cases of people with many ties to the United States, including family.
By granting "prosecutorial discretion," the authorities wouldn't give the parents of a U.S. citizen a green card or anything like it, but they would promise not to deport them for the present.
Even undocumented parents who are placed into removal proceedings might not be out of luck. If they have been living in the U.S. a long time, it might be possible to apply for what's called Cancellation of Removal (under I.N.A.) § 240A(b)(1)(D)), based on:
Living in the U.S. illegally in hopes of eventually immigrating is something that immigration law discourages, with numerous specific consequences. Your best best is to consult with an experienced immigration attorney.
]]>The Department of Homeland Security (DHS), along with other federal agencies, have called it a "moral and public health imperative" to make the COVID-19 vaccine available to undocumented immigrants and basically anyone living in the United States.
DHS therefore actively encourages non-citizens, no matter their immigration status (or lack thereof), to go ahead and get the COVID-19 vaccine or booster when eligible under local guidelines. In fact, given how many immigrants are essential workers in the United States, it's possible that some undocumented persons will be near the front of the line when it comes to vaccination eligibility.
You will not be asked for any sort of proof of immigration status upon arrival at the COVID-19 vaccine facility.
You will be asked for some personal information, such as your date of birth, occupation, contact information (address and phone number), medical insurance information (if you have any; it's not required for being vaccinated.) and whether you have any high-risk medical conditions.
In some localities, it's even possible to avoid giving an address or phone number when filling out vaccine paperwork, but this is rare, given that advance appointments are the norm, and the providers need a way to reach you. Also, if there's a requirement that you show residency in the state where you will be getting the vaccine (as in Florida, for example), you will definitely have to show a document with your address.
State and local agencies will not ask for a Social Security number or a fee payment, either. In fact, if anyone asks for this, whether for a vaccine or a waiting list, make double sure you're not dealing with a scam operation. Nevertheless, some private providers need a Social Security number to bill the person's insurance; and some will bill the insurance company for a vaccine administration fee.
Medical information in the U.S. is considered private. Doctors and health care workers are simply not allowed to share any of it with U.S. immigration officials.
The U.S. government has made the COVID-19 vaccine available at no cost for everyone, no matter their immigration status and no matter whether they have medical insurance. (Unfortunately, the same cannot be said of COVID-19 testing or treatment, for which there is normally a charge.)
Of course, if you sign up for a vaccine appointment, you will want to confirm with the provider that there will not be a charge, just in case. Again, if you're asked to pay a fee, there's a good chance you're dealing with a disreputable, perhaps even a fake provider.
Both Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have stated they will not engage in enforcement activities at or near vaccine distribution sites or clinics. This is consistent with ICE’s so-called guidelines for protected locations, under which ICE does not carry out enforcement operations at or near hospitals, doctors' offices, health clinics, emergency or urgent care facilities, or other health-care facilities.
If you're reading this and thinking, "But I've read about ICE showing up at plenty of sensitive locations in recent years," it's true that under the Trump Administration, this policy was largely ignored. Under the Biden Harris Administration, however, ICE and CBP have been ordered to return to the priorities that were in place for many years prior, which included focusing resources on high-priority cases such as non-citizen national security threats or serious criminals.
That said, DHS maintains its power to arrest someone at a sensitive location "in the most extraordinary of circumstances." Thus it's possible that if someone was considered a national security threat, they could be picked up even at a health-care or vaccination facility. Nevertheless, the federal government understands the importance of keeping vaccine distribution moving forward, so such actions are unlikely.
If there's a chance you might apply for a U.S. green card in the future (lawful permanent residence), you will then have to show that you're unlikely to need government financial assistance in the future; in other words, be a likely "public charge." Fortunately, using free COVID-19 vaccination services will not be considered in U.S. Citizenship and Immigration Services' (USCIS's) public charge determinations.
The U.S. government provides information and a state-by-state search tool on where to access COVID-19 vaccinations near you. You might also want to contact local nonprofits serving immigrants and refugees to see which sites or access methods they recommend, and the National Resource Center for Refugees, Immigrants, and Migrants (NRC-RIM)'s articles on vaccine matters.
]]>This article explains Washington’s law and procedures for getting a driver’s license if you are an undocumented person.
Getting a standard Washington driver’s license simply means that you are allowed to operate a vehicle within the state of Washington and to carry an identity card proving that fact.
Obtaining a standard Washington driver’s license does NOT give you any sort of legal immigration status in the United States. Washington State has no power to legalize your U.S. immigration status—this is a matter governed solely by federal law. (For an overview, see What's the Easiest Way to Get a U.S. Green Card?.)
That means, for example, that you cannot use your Washington driver's license for federal identification purposes or to vote in U.S. elections. (Also see How Falsely Claiming to Be a U.S. Citizen Can Make You Deportable.) And you will not be eligible for a REAL-ID type license (required for airplane travel starting May 7, 2025) nor for what’s called an “enhanced” Washington drivers’ license, which are accepted at the ‘Ready Lane’ at the border crossing between Washington and Canada.
As an undocumented person wondering whether you are eligible for a Washington driver’s license without legal status or a Social Security Number (SSN), the important issue is whether you can meet the terms set out Chapter 46.20 of the Washington Code, passed in 1993.The statute doesn’t directly talk about issuing licenses to undocumented immigrants—it just doesn’t require you to prove lawful immigration status in the United States in order to get a license.
The main requirement you will have to meet is that you can prove your identity. You can use things like a foreign passport, a consular ID card, a birth certificate, a U.S. Military DD Form 214, and various other documents. See the “Documents for proof of identity” page of the Washington State Department of Licensing website (and be sure to check both "A-List" and “B-List Documents.” You might need to provide several documents in order to satisfy this requirement.
You will also, when you go to the driver’s licensing office to apply, be required to sign a declaration regarding your lack of a Social Security number (SSN).
If you present documents in a language other than English, you may be asked to also submit a translation done by an approved agency.
To apply, you will be expected to fill out an application form, pay fees, and pass a written exam, a vision screening, and a driving test. While study materials are available in a number of languages on the "Driver training and testing" page of the Department of Licensing (DOL) website (under Driver guides), your language options for taking the written test are limited to English and Spanish.
There will be no direct indication of your immigration status on your Washington license. However, it will say "FEDERAL LIMITS APPLY," a reminder that it's not a REAL-ID and doesn't give you the same sorts of access as that or an enhanced ID.
Think twice about applying if you have a record of driving while under the influence of alcohol or drugs (a DUI) or other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers’ license. Consult with an experienced immigration attorney about the risks before applying. While applying for a license does not normally cause the Washington DMV to turn someone’s name over to federal authorities, it probably could not refuse such a request from enforcement officials if you run into trouble with the law.
See the Washington State Department of License's Get your first license or permit page.
]]>If you are an undocumented person, you'll want to read this article explaining California’s rules on getting a driver’s license and outlining the next steps to take in order to apply.
No, getting a California driver’s license does NOT give you any sort of legal status in the United States. Only the U.S. federal government has the power to legalize someone's U.S. immigration status—no individual state can do that.
What getting a California driver’s license does mean is that you are allowed to operate a vehicle within the state of California and to carry an identity card proving that fact. That's all. The main reason the California legislature passed this law was traffic safety. It noted various studies finding that around one in five fatal crashes involved a driver without a proper license; and that millions of California drivers lacked car insurance.
So, for example, you cannot use your California AB60 license for federal identification purposes, to show to an employer, or to vote in U.S. elections.
As an undocumented person seeking a California driver’s license despite having no legal immigration status nor a valid Social Security Number (SSN) will need to meet the terms set out in AB 60. This law requires you to not only meet the same standards as other prospective drivers (for example, to understand the traffic laws and have adequate vision to drive safely), but to:
You will need to supply proof of your identity, most likely from your home country, such as a passport, consular card (matricula consular), or electoral card.
You will also need to submit proof of your residence in California, such as rental or lease agreements showing your and the landlord’s signature, mortgage and home utility bills in your name, school, medical, insurance, bank, and employment records, a letter from your church, temple, mosque, or other place of worship, and so on. If you present documents in a language other than English, you will need to also submit a certified translation or an affidavit of translation into English.
To apply for your license, you can either make an appointment or show up at one of various California drivers license processing centers during open hours.
You will be expected to fill out an application form, pay fees, and pass a written exam and possibly a road sign test, an eye test, and a driving skills test (with you behind the wheel). Study materials are available in a number of languages.
For details, see the AB 60 Driver License page of the California DMV website.
Your California driver’s license will bear the notation "FEDERAL LIMITS APPLY." That means anyone reading might guess that you are not a U.S. citizen—but not necessarily. The same notation will be given to California residents (including U.S. citizens) who simply can't or won't qualify for a so-called "REAL ID" (as will be required starting May 7, 2025 for anyone wanting to board a commercial plane or engage in certain other federally related activities).
The law also forbids discrimination against people holding an AB 60 license. California police do not, by and large, turn over undocumented people to federal immigration enforcement agents.
It remains true, however, that nothing stops federal immigration officials from arresting someone who holds an AB 60 license and cannot otherwise prove legal immigration status—perhaps after encountering them during a home or workplace raid, placing a hold on them after an arrest and imprisonment by law enforcement, or accessing the DMV files because they are searching for that person.
Think twice about applying if you have a record of driving while under the influence of alcohol or drugs (a DUI) or other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers’ license. Consult with an attorney about the risks before applying for your AB 60 license.
If you are an undocumented person living in California who would like a license to drive, see the California Department of Motor Vehicles (DMV) website for more specific guidance. You will also find suggestions regarding what documents to submit on the AB 60 license and AB 60 Checklist pages of the DMV website.
]]>Unfortunately, successfully obtaining a New Mexico DAC card does not confer any sort of lawful immigration status in the United States. It simply means that you are allowed to operate a vehicle within the state of New Mexico and to carry a photo identity card proving that fact. Like all states, New Mexico has no power to legalize your U.S. immigration status—this is a matter governed solely by U.S. federal law. (For an overview, see What's the Easiest Way to Get a U.S. Green Card?.)
That means, for instance, that you cannot use your New Mexico DAC for federal identification purposes or to vote in U.S. elections. And because it’s not considered a “REAL ID” card, you won’t be able to use it to fly on commercial planes or to enter certain federal buildings or facilities starting May 7, 2025.
As an undocumented person looking into whether you are eligible for a New Mexico DAC without having legal status or a Social Security Number (SSN), the first question is whether you can meet the basic terms set out in the New Mexico Statutes, at NM Stat § 66-5-9.
This law requires you to:
You must also satisfy other basic New Mexico requirements related to obtaining a drivers’ license, such as showing that you can drive. In addition, you will need to pay a fee. Unlike in the past however, you will not be fingerprinted.
Note that, if you plan to present documents in a language other than English, you will need to submit a certified translation into English.
Think twice about applying if you have a record of driving while under the influence of alcohol or drugs or other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers’ license. Consult with an experienced immigration attorney about the risks before applying.
While applying for a license does not normally cause the New Mexico MVD to turn someone’s name over to federal authorities, it probably could not refuse such a request if you run into trouble with the law.
If you are approved, your card will be a different color than regular licenses. It will contain the words "Driver's License" as well as "Not Intended For Federal Purposes."
Any local law enforcement or immigration officer looking at it might wonder whether you have no status in the United States. But some U.S. citizens and residents will also be applying for these standard licenses, in situations where they can't qualify for a REAL ID or choose not to go through the effort and expense or doing so. You'll also want to balance the risk of suspicion with that of driving with no license, which could also get you into trouble with the law and thus placed into deportation (removal) proceedings.
The New Mexico MVD website does a great job at advising you what you will need to do and what documents you will have to supply in order to prove the above things, on its Driver’s Licenses/ IDs page.
If you are in the U.S. in a status that does not allow you to receive a Social Security number, however—perhaps because you are an undocumented immigrant, a nonimmigrant with a visa that doesn’t allow work, or a spouse of a U.S. citizen, green card holder, or visa holder in the United States who is not allowed to work during your time here—you cannot become part of this system.
Something called an Individual Tax Identification Number (ITIN), however, issued by the Internal Revenue Service (IRS), offers some similar benefits when it comes to showing that compliance your U.S. tax obligations. Let's look closer at how the SSN and ITIN compare.
The main purpose of the nine-digit ITIN is to use in place of an SSN for purposes of filing income taxes or claiming various tax credits (such as the child care credit for a child who is a U.S. citizen or lawful resident).
The ITIN will not, however, fool an employer into thinking an undocumented person or foreign worker without a valid work permit has a right to accept employment in the United States. The employer can easily check a U.S. government database to see whether you have a valid SSN. The ITIN will only allow an employer who is willing to take a chance on (illegally) hiring an undocumented immigrant to withhold taxes on your behalf.
The ITIN also comes in handy for things like opening an interest-bearing bank account, applying for a driver’s license (the laws in some states allow this to people with ITINs), and creating a track record of having lived in the United States (which is occasionally useful for gaining forms of temporary or permanent immigration status, in the nature of an amnesty).
Keep in mind, however, that the ITIN does not indicate or confirm legal status in the United States, nor grant any right to legally work here.
To apply for your own ITIN, you will need to download Form W-7, Application for IRS Individual Taxpayer Identification Number, from the IRS website.
After filling out this form, you will need to attach a completed federal income tax return. The purpose of this is to show that you need the ITIN for tax-filing purposes. You can use either an original or a copy of a tax return you filed in the past (in the latter case, you'll need to write "COPY" at the top.)
Then you will need to gather original documentation or certified copies verifying your identity and foreign status. The only documents the IRS will accept for these purposes are the following, which must be current and show an expiration date and your name and photograph:
You can apply either by mail or in person at a local IRS office. If successful, you will receive a letter containing your number. You will not receive an actual ITIN card; this was a move to avoid confusion with SSNs and their accompanying status to work.
Once you have an ITIN, you will need to use it regularly (namely by entering it onto a 1040 tax return, or being claimed as a dependent on someone else's tax return).
If you don’t use the ITIN for three years in a row, you will need to revalidate it—that is, reapply. For information on how to do that, go to the Individual Taxpayer Identification Number (ITIN) page of the IRS website.
For foreign nationals who are in the U.S. with no immigration papers, starting a small business, even if it means just selling a few things informally, can seem like a natural way to earn some income. In many cases, they have U.S. family members with a restaurant, grocery, food truck, or service business, and have been helping out there. But what are the legal ramifications if they’d like to branch out on their own?
Welcome to one of the great unresolved questions of immigration law. You’re asking the same question thousands of other undocumented business owners probably have. Many of them went ahead and started businesses anyway, and have, for the most part, encountered few barriers from government regulators, banks and institutional lenders, or even immigration enforcement authorities.
Here’s the deal: U.S. immigration law (which is federal, meaning it’s followed throughout the country), does not say anywhere that an undocumented immigrant is barred from owning a business. The law makes being in the U.S. without permission unlawful by itself, of course; this act is punishable by deportation and various bars on return to the U.S. after removal or other departure.
There have even been cases where an undocumented person was caught in the U.S. and business ownership was actually viewed as a point in their favor when defending against deportation, especially when proof of compliance with tax laws is readily available. However, this might not always be the case, and this should not be taken as saying that starting a business will prevent deportation. Deportation is a very case-specific determination.
The United States doesn't exactly open the door to entrepreneurs who are here illegally. And, relatedly, U.S. law makes it illegal for someone to employ an undocumented worker. This comes from the Immigration Reform and Control Act, or IRCA (found at 8 U.S. Code § 1324a.) Businesses that hire undocumented workers may be sanctioned with fines, asset forfeitures, and in instances of repeated violations, criminal arrest.
These penalties can also be applied to an undocumented person who is a business owner that hires other undocumented people. In that case, the undocumented business owner could face multiple immigration violations. Yet U.S. enforcement authorities have apparently not tried to use this section of IRCA to argue that a business owner is both employer and employee, and therefore violating hiring laws. (Still, it could happen.)
The bottom line is that no lawyer can confidently tell you that it is illegal to start a business if you are an undocumented person in the U.S.; and by the same token, no lawyer can advise you to go ahead and do so. (That shouldn’t stop you from consulting a lawyer to find out the latest word on this matter, however, and whether you might have other options to regularize your immigration status.)
Whatever you do, make sure to abide by other U.S. laws governing small businesses, such as those regarding permits, health codes, labor laws, and so forth. See these articles on Small Business for more information.
]]>If you are an undocumented person living in New York, you'll want to read this article explaining your state's rules on getting a so-called "standard" driver's license and outlining the steps toward applying.
Unfortunately, getting a New York State standard driver's license does NOT give you any sort of legal immigration status in the United States. Only the U.S. federal government has the power to legalize someone's U.S. immigration status—no individual state can do that.
What getting a New York driver's license does mean is that you are allowed to operate a vehicle within the state and to carry an identity card proving that fact. The so-called "standard" license you will receive is your only option; specifically, you will NOT be able to obtain an "Enhanced" or "REAL ID."
That also means you cannot use your New York driver's license for federal identification purposes such as boarding a commercial aircraft, showing to a U.S.-based employer, or voting in U.S. elections.
As an undocumented person seeking a New York driver's license, you will need to not only meet the same standards as other prospective drivers (for example, understand the state's traffic laws and have adequate vision to drive safely), but also be able to prove your:
You will need to document all these things as part of the application process, described next.
Before applying, you will need to prepare for the required road test and written exams by learning to drive a vehicle and studying the rules of the road; and also will need to gather documents proving your eligibility.
Even if you already know how to drive, it's best practice, and to do so legally. For that, you'll need to get a learner's permit from a Department of Motor Vehicles (DMV) office. You might also want to take a state-approved driver education course or pre-licensing course.
Another preparatory step will involve preparing for the written driver's exam, which you can do by reading the New York State Driver's Manual and taking practice tests.
The next step is to gather documents proving all three of the things on the list above: again, including your name, birthday, and residence in New York state. Fortunately, one document can serve more than one function in this situation. Also, you will need to account for whether or not you have a U.S. Social Security Number (SSN).
Possible forms of documentation of your name and identity as well as birth date (in some cases) include:
The list of types of documents proving your residence in New York State is much longer (though some of the above items could potentially satisfy it, too). It includes things like utility bills, Social Security statements, postmarked mail, property deeds or lease agreements, and more. See this handy How to Apply pdf issued by the New York DMV for more ideas.
With regard to a Social Security Number, if you don't have a valid one, you can instead submit a Form NSS-1A (Affidavit Stating No Social Security Number). The form is available in various languages on New York's DMV website.
To submit your application, you can either try walking into a state Department of Motor Vehicles office or make an appointment. You'll also need to take the written test at a DMV office, and a vision exam. After that, you can schedule a road test with the DMV.
Your license will look like any other standard license in the state of New York, but will say “NOT FOR FEDERAL PURPOSES” in the upper right-hand corner.
Obviously, applying for a New York State driver's license gives a local government your name and address. Nevertheless, the language of the Green Light Law prohibits using this type of license as evidence of their immigration status.
If there's suspicion that you committed a crime other than unlawful entry to the United States, however, the federal government could potentially obtain a court order, subpoena, or warrant from a judge to access your information. You should therefore consult with an attorney about applying for a standard license if you have a record of driving while under the influence of alcohol or drugs (a DUI) or any other criminal record, have been ordered deported (removed) in the past, or have used false documents to obtain a past drivers' license.
If you are an undocumented person living in New York State and wish to obtain a standard driver's license, check out the Get a driver license page of the New York DMV's website.
]]>If you are an undocumented person living in Illinois, you'll want to read this article, which explains the state's rules on getting a temporary driver's license and outlines the steps in applying for it.
Unfortunately, getting an Illinois TVDL does NOT give you any sort of legal status in the United States. Only the U.S. federal government has the power to legalize a foreign-born person's U.S. immigration status—no single state can do that.
What getting an Illinois driver's license does mean, however, is that you are allowed to operate a vehicle within the state and to carry a card proving that fact. That's definitely a benefit if you will be operating a car and don't want to risk arrest for doing so without a license (which could be a swift path to removal, otherwise known as deportation from the United States.)
But you cannot use your Illinois license either for federal identification purposes, to show to an employer, or to vote in U.S. elections.
The Illinois driver's license available to undocumented persons expires after three years. You can get another TVDL, but it won't be automatic, nor as easy as for people renewing regular licenses. You will basically have to apply all over again, as if doing so for the first time. (For a comparison of TVDLs and regular licenses, Illinois offers a handy comparison sheet.)
To be eligible for an Illinois driver's license as an undocumented person, you must:
Be prepared to gather a number of documents in order to prove the above.
In order to request a TVDL, you will need to go in person to an Illinois Secretary of State facility. There, you can submit a Verification of Residency Form, which you can download online and fill out in advance. In addition, you'll need to present documents proving your eligibility, as described on the Illinois Secretary of State's list of "acceptable identity documents."
For example, you could present your unexpired foreign passport to prove your foreign citizenship and signature (Part A of their list); your foreign birth certificate to prove your date of birth (though it won't be enough by itself, so you'd need a second item from Part B of the list, such as a certified school transcript or a U.S. visa); a declaration that you can't get an SSN (to satisfy Part C of the list); and a rental agreement or utility bill showing where you've lived (for Part D of the list).
You will also have your photo taken while you're at the licensing office.
If your application is successful, a TVDL will be mailed to you within a few weeks.
Your license will look similar to a regular Illinois driver's license, but with some important differences. For one, it will say "TVDL" at the top, as well as, "Not valid for identification." Strange as it might seem to have a photo identity card that says it's not valid for identification, this refers mostly to the fact that it's not considered valid for federal identification purposes, for instance if you were to travel on a commercial flight.
You might understandably be concerned that anyone looking at your TVDL might guess that you are not a U.S. citizen, and don't have any lawful immigration status at all. One thing in your favor, however, is that non-citizens who are lawfully in the U.S. on a visa would also request this type of visa.
The Illinois Secretary of State website contains detailed information on eligibility and the application process for a TVDL.
]]>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.
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