EB-4 Special Immigrant Juvenile Status
Under this same category and preference (EB-4 Fourth Preference), children of who have been made subject of court proceedings in the US because they have been abused, neglected or abandoned may seek lawful permanent residence in the US. This classification was created in 1990 as a humanitarian protection for children.
What circumstances may make a child eligible to migrate under the SIJ classification?
The following circumstances make children eligible for the SIJ classification:
- They were abused prior to arriving in the US
- They were abused while they were in the US
- They are under the custody of the US Department of Health and Human Services, Office of Refugee Resettlement, or Unaccompanied Children’s Services Program.
- They were placed by the state child welfare system in the custody of a state agency or in the custody of a person or entity appointed by the state or by a juvenile court.
What are the requirements for migrating under this classification?
- The child must have been inspected and admitted into the US or inspected and paroled into the US. That means that the child should not have entered the US illegally.
- The child must be present in the US when the Application to Register Permanent Residence or Adjust Status was filed.
- The child is eligible to receive an immigrant visa
- An immigrant visa is immediately available when the Form I-485 was filed and at the time the USCIS makes a final decision on the application
- None of the bars to adjustment of status applies to the child
- None of the grounds of inadmissibility applies to the child
- If the child suffers from any of the grounds of inadmissibility, a waiver of inadmissibility has been filed
What is “parole”?
Parole is the authority of the Secretary of the Department of Homeland Security to allow an individual to enter the US for urgent humanitarian reasons or for significant public benefit. It is not the same as “admission” into the US. Admission into the US involves going to a port of entry, being inspected and allowed to enter the US lawfully.
Parole for SIJ classified children is humanitarian in nature. This means that even if a child is an inadmissible alien, the child may be allowed to enter the US for a temporary period because of a compelling emergency. It cannot be used to circumvent the normal visa procedures or bypass delays in the visa issuance process. It cannot be used to immigrate to the US.
How can the process of migration begin?
The child or the state agency may file a petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). This form will allow the child to be classified as SIJ. Once this form is filed, the child is treated as “paroled” into the US.
The child, then, or a state or federal agency, on behalf of the child will file an application to Register Permanent Residence or Adjust Status (Form I-485). While the USCIS is deliberating on whether to allow the child to become a lawful permanent resident, the child is considered “paroled” into the US.
When must the Form I-360 and the Form I-485 be filed?
The Form I-360 which seeks a classification of the child as SIJ must be filed while the child is still unmarried and under the age of 21. If the child filed the Form I-360 before he or she reached his or her 21st birthday, the Form I-485 may be filed even after the child has already reached the age of 21. These two forms may also be filed simultaneously.
In what instances will a Form I-360 be denied?
The application for classification as a SIJ status of a child will be denied or automatically revoked when:
- the child marries
- the child is reunited with one or both parents by order of a juvenile court after the court had previously ordered or found that reunification of the child with one or both parents was not viable
- a juvenile court determines that it would be in the best interest of the child to be returned to his or her country of nationality or country of last habitual residence.
If the Form I-360 is approved, will the Form I-485 also be approved?
These are two different petitions and applications. It may be that the Form I-360 is approved and the child is classified as a SIJ status, but this only means that the child is free to file an application for adjustment of his status to that of a lawful permanent resident.
All applicants for adjustment of status to that of a lawful permanent resident must not suffer from any of the bars to adjustment. As an SIJ status, some bars to adjustment are waived by the US government except the terrorism-related bar. If a child who has been classified as a SIJ status is found to have engaged in terrorist activities, then the child will be barred from obtaining the status of a lawful permanent resident and his Form I-485 will be denied.
If both the Form I-360 and the Form I-485 are approved, can the SIJ still be found inadmissible into the US?
Yes and no.
There are grounds of inadmissibility that are deemed waived. The ground that the child has become a public charge is not applicable because the child obtains an SIJ status precisely because the child is already in foster care or under custody of the court. The lack of a labor certification does not apply to the child, either, because the child is still supposed to be under foster care. The fact that the child entered the US illegally (without having been admitted or inspected) does not apply either because the filing of the Form I-360 and Form I-485 are considered “parole”.
There are grounds for inadmissibility that may be waived by applying for an SIJ-specific waiver of these grounds: Such as when the child is suffering from an infectious disease, or when the child committed abuse of a student visa.
There are grounds of inadmissibility that cannot be waived. The child will be inadmissible if the child is convicted of crimes involving moral turpitude, if the child is convicted of multiple crimes, if the child is found guilty of trafficking in controlled substances or if the child has been found to have engaged in terrorist activities or any acts of torture, extrajudicial killing, or genocide.
What if the child had previously been found or declared to be a juvenile delinquent?
Findings or orders of a court finding the child a juvenile delinquent, these are not considered criminal convictions. However, these findings may be a factor in considering whether the child should be given the SIJ status. A child must disclose all arrests and all charges filed against him or her at the time of filing the Form I-485 (adjustment of status).
Will the SIJ status still be interviewed for purposes of issuance of a visa?
The child may be interviewed but because children who experienced abuse or neglect are vulnerable, the USCIS will interview them with special care. The officer who will conduct the interview will not ask questions regarding details of the abuse, neglect or abandonment. The child may bring a trusted adult to the interview, a lawyer or a representative.
What if the Form I-485 is denied?
The child will receive a written notice of the reasons for the denial of the application for adjustment of status. The child will not be able to appeal the denial, but the child may file a motion for reconsideration if the child feels that the denial did not consider the documents presented. The child may also file a motion to reopen if there is new evidence to support the application for adjustment of status. Or, the child may simply apply again in Immigration Court.
If you need assistance in filing either a Form I-360 or Form I-485, our competent and helpful lawyers at Lluis Law are available. If you need help in filing a motion for reconsideration or a motion to reopen they can also help. Call us for a consultation today.