Who Qualifies for Special Immigrant Juvenile Status?

Special Immigrant Juvenile Status (SIJS) is available to a child or young adult in the United States who cannot safely reunite with one or both parents because of abuse, neglect or abandonment, and who gets a state court to say so. Four requirements decide the case: age and marital status, physical presence, a qualifying state court order, and the consent of USCIS. The first three are mostly facts. The fourth is a judgment call USCIS makes when it reads the order. Most families who ask whether a child qualifies for SIJS are really asking about one of two things: whether the parent’s conduct counts, and whether the child is still young enough for a court to act.

The four Special Immigrant Juvenile Status requirements

The statute is INA 101(a)(27)(J), and the regulation that fills it in is 8 CFR 204.11. To be classified as a special immigrant juvenile, the young person must:

• Be under 21 and unmarried on the day Form I-360 is filed, and stay unmarried until USCIS decides the petition.
• Be physically present in the United States when the petition is filed and when it is decided.
• Have an order from a state juvenile court that declares the child dependent on the court or places the child in the custody of a state agency, an individual or an entity, finds that reunification with one or both parents is not viable because of abuse, neglect, abandonment or a similar basis under state law, and finds that return to the home country is not in the child’s best interest.
• Obtain USCIS consent, which USCIS gives when the record shows the court order was sought primarily for protection from the parent’s conduct, not primarily to obtain an immigration benefit.

Everything in the third item happens in a state courthouse before anything is filed with USCIS. That is why our Special Immigrant Juvenile Status practice begins with the state case, not the federal form. The order has to exist, and in most cases still be in effect, when the I-360 is filed. We walk through what the order must contain in a separate post on the three findings in the SIJS court order.

What abuse, neglect or abandonment means here

The federal statute borrows these words from state law. A Virginia juvenile court applies Virginia’s definitions, the DC Superior Court applies the District’s, and the New York Family Court applies New York’s. In practice the categories are broader than many families assume.

Abandonment usually covers a parent who left the child with relatives and stopped providing support or contact, or who was never part of the child’s life. Neglect covers a parent who failed to provide food, shelter, schooling, medical care or supervision, including a parent who left a young child to fend for themselves in the home country. Abuse covers physical and sexual harm, and in many states emotional abuse and exposure to a parent’s violence against another family member. The order should cite the state statute it relies on so that USCIS can see the finding is tied to the law rather than to a general sense that the child’s life was hard.

Only one parent needs to meet the standard. A child who lives safely with a mother in Herndon or Queens can still qualify if the father in the home country abandoned or abused the child. The order should address the facts about the offending parent, and where the facts support it, both parents.

Things that do not disqualify a child

Families often rule themselves out for reasons that are not in the law. The child does not need to be in foster care or in any form of government custody. A guardianship or custody order placing the child with an aunt, grandparent, older sibling or trusted family friend satisfies the first finding. The child does not need to have crossed the border alone; many SIJS clients entered on a visitor or student visa and overstayed, or arrived with one parent. The child does not need to be in removal proceedings, and a child who is already in removal proceedings can still pursue SIJS while asking the immigration judge to wait. A prior denied asylum claim does not bar the petition. Neither does unlawful entry; several inadmissibility grounds that would sink other cases do not apply to SIJS beneficiaries at the green card stage.

Situations that complicate eligibility

Some facts do change the analysis. Marriage before USCIS decides the I-360 ends eligibility, and there is no waiver. A young person who has turned 18 may be past the age limit of the local court even though federal law allows filing until 21; the rules on this differ by court and type of proceeding, and we treat every case involving a 17-year-old as urgent. We explain the two age clocks in our post on SIJS age-out rules.

If the child is in the custody of the Department of Health and Human Services as an unaccompanied minor, a state court generally needs the department’s specific consent before it can decide custody, which adds a step. A child who was adopted may still qualify if the adoptive parent abused or abandoned them. And a serious criminal record will not stop the I-360, but it may create inadmissibility problems later that need a waiver or cannot be waived at all.

SIJS compared with asylum and family petitions

SIJS is often one of several options. A child who fears persecution in the home country may have an asylum claim that runs on a one-year filing deadline, while a child with a U.S. citizen or permanent resident parent may have a family petition. The paths can be pursued together, and the choice has a permanent consequence. A person who gets a green card through SIJS can never petition for a natural or prior adoptive parent, including the parent who did nothing wrong. Families who later hope to sponsor the non-offending parent need to weigh that before filing. Our overview of humanitarian protection options describes how these paths fit together.

If a child in your care cannot return to a parent and is approaching 18, the state court clock may already be running. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our Special Immigrant Juvenile Status page or schedule a consultation.