Certain undocumented young immigrants living in foster care in the U.S. can become eligible for a green card (U.S. lawful permanent residence) as so-called Special Immigrant Juveniles. What's more, they can file for a green card using the process called Adjustment of Status, which means they won't have to leave the U.S. for an interview at a U.S. consulate in their home country. They will still need to attend an interview, but at an office of U.S. Citizenship and Immigration Services (USCIS).
With a green card in hand, they are on their way to obtaining naturalized U.S. citizenship.
Although the various categories of "special immigrant" are considered an employment-based ground of green card eligibility, this category does not require the applicant to have an employer.
Eligibility Requirement for Special Immigrant Juvenile Status
In order to qualify for a green card as a special immigrant, the foreign-born child must meet the following criteria:
- He or she is under age 21 and unmarried. The child must remain both under 21 and unmarried all the way through approval of the green card. That means it is important to act quickly in the case of a child who is nearing age 21.
- He or she has been declared dependent on a juvenile court located in the United States.
- That court either says the child is eligible for long-term foster care or has committed the child to the care of a state agency, due to abuse, neglect, or abandonment, and
- The court has determined that it is in the minor’s best interest to remain in the United States.
(For the original law on this matter, see the Immigration or Nationality Act (I.N.A.) at Section 203(b)(4), also at 8 U.S.C. Section 1153(b)(4); and I.N.A. Section 101(a)(27), 8 U.S.C. Section 1101; and 8 C.F.R. Section 204.11.)
If the child is already in DHS custody, DHS must specifically consent to the proceedings in juvenile court before they begin. Even if the child is not in custody, you must obtain DHS’s express consent to the dependency order. DHS will give consent only if it becomes persuaded that the main purpose of the effort is to relieve the child from actual abuse, neglect, or abandonment. If it appears that the whole situation is being manipulated to get a green card for the child, DHS will not grant consent.
CAUTION: People who get their permanent residency as a special immigrant juvenile may not petition for their natural or prior adoptive parents to immigrate to the United States. This is because the U.S. offers this special green card to juvenile immigrants with the understanding that the children need to get away from their homeland parents—so it would make little sense for them to be reunited with those parents.
The child can file the application for a green card on his or her own. More likely, however, he or she will need help from an attorney or caseworker.
Application Requirements for Special Immigrant Juvenile Status
The application process (after obtaining the appropriate court order) for a special immigrant juvenile can be done in a few simple steps. The main one involves mailing a visa petition (on Form I-360) as well as all the forms for Adjustment of Status (I-485 and accompanying forms and documents) to a USCIS regional service center. In the unlikely event that a wait for visas develops in this category, you will have to file the visa petition first and then wait for approval before submitting the adjustment of status packet; but as mentioned above, that rarely happens. (Also note that, unlike many other types of applicants, entry without inspection is not a bar to filing for adjustment of status.)
The support documents must include the court orders declaring the child to be in the custody of the state and placing the child in long-term foster care, verification of the child's age, a birth certificate (translated into English if need be), two passport-style color photographs, and sealed medical examination report done on Form I-693 by a designated civil surgeon. For children over 14 years of age, Form G-345 must also be submitted. The child’s arrest record, if applicable, has to be provided (but definitely get an attorney's help if there are any criminal issues in the child's past).
A fee is required with this application. However, if the child has no money, he or she can request a fee waiver.
After the adjustment of status application has been processed, the child will be called in for fingerprinting, and later for an interview at a USCIS office. At that time, the child should be approved for lawful permanent residence.
Getting Legal Help
Given the requirement of a court order, and the complexities of immigrant applications, it would be worth getting an experienced U.S. immigration attorney involved in this process.