Volume 6 - Immigrants

8 CFR 103.3 - Denials, appeals, and precedent decisions

8 CFR 103.5 - Reopening or reconsideration

8 CFR 205.1(a)(3)(iv) - Reasons for automatic revocation

8 CFR 205.2 - Revocation on notice

8 CFR 216.3 - Termination of conditional permanent resident status

INA 101(a)(27)(J), 8 CFR 204.11 - Special immigrant juveniles

INA 101(b) - Definition of child

INA 203(b)(4) - Certain special immigrants

INA 203(b)(5), 8 CFR 204.6 - Employment creation immigrants

INA 204(a)(1)(G)(i) - Petitioning procedure

INA 216A, 8 CFR 216.6 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

INA 245(h) - Adjustment of special immigrant juveniles

INA 287(h) - Protecting abused juveniles

Pub. L. 102-395 (as amended) - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993

Pub. L. 102-395 - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993

Appendices

Update to Special Immigrant Juvenile Policy and Administrative Procedure Act (APA) Considerations

Appendix: Update to Special Immigrant Juvenile Policy and Administrative Procedure Act (APA) Considerations

On November 19, 2019, USCIS provided more clarity on several requirements for special immigrant juvenile (SIJ) classification, including the following:

  • USCIS reaffirmed and clarified that the petitioner must have been a juvenile under the relevant state law definition of “juvenile” (or equivalent term) when the juvenile court order was issued;[1] 

  • USCIS clarified the definition of a juvenile court for purposes of SIJ classification and provides examples of the types of evidence that may be provided to establish that a court is acting as a qualifying juvenile court;[2] 

  • USCIS clarified guidance on what constitutes a qualifying “dependency” or “custody” determination from the juvenile court for the purposes of SIJ classification eligibility;[3]

  • USCIS clarified guidance on the statutorily-mandated USCIS consent function;[4]

  • USCIS clarified guidance on what qualifies as a similar basis to abuse, neglect, or abandonment under state law;[5] and

  • USCIS reaffirmed for officers that the agency no longer requires that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.[6]

These updates and clarifications of current USCIS policy guidance are based on USCIS interpretation of the applicable terms in DHS regulations and the Immigration and Nationality Act (INA). An agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue an interpretive rule or one that amends or repeals an existing interpretive rule,[7] or when modifying rules of agency organization, procedure, or practice.[8] However, the instruction to not require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification was a policy change in response to the resource strain of ongoing litigation. As with all other policy guidance USCIS issues, these updates and clarifications to officers do not add to the substantive regulations, create legally binding rights, obligations, or change the substantive standards by which USCIS will evaluate SIJ petitions. Accordingly, USCIS published no Federal Register notices requesting public comment because public notice is not required for these internal policy changes and clarifications.

Unfair Surprise and Reliance Interest

An agency can change its interpretation of a regulation at different times in its history as long as the interpretative changes create no unfair surprise.[9] In this case, USCIS is not changing its policy regarding SIJ adjudications. USCIS is updating this guidance to clarify what the law and regulations permit or require because of potential confusion. It has never been USCIS official policy to grant SIJ classification based on a state judge’s order that is sought primarily to permit the alien to obtain lawful immigration status. 

USCIS has analyzed the potential for and taken into account serious reliance interests that may be engendered by the practices USCIS officers may have followed prior to this clarification. USCIS acknowledges that a person who may have been approved for SIJ classification before this policy alert may no longer be approved by an officer following this clarifying guidance in rendering their decision. An advocate or representative of an SIJ petitioner, not knowing of this policy, may erroneously petition the state court judge who is handling their client’s case to issue an order with findings of fact in support of the petitioner’s eligibility for SIJ that does not provide relief from parental abuse, neglect, abandonment or a similar basis under state law. However, the statutory and regulatory eligibility criteria have never permitted SIJ classification to be approved using such state court orders, nor has it been official USCIS policy. Therefore, an SIJ petitioner cannot be said to have acted in reliance on the continuation of a practice and policy that has not been a USCIS practice and policy and which is contrary to the law. USCIS must limit the approval of SIJ classification to cases who are eligible based on a valid court order as required by the INA regardless of its effects on parties who may rely on erroneous state court orders. 

With respect to the policy change to no longer require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification, USCIS made that change in response to the strain of litigation. USCIS anticipated that the change would not negatively impact petitioners with potential reliance interests, rather it would reduce their evidentiary burden.

Implementation

USCIS implemented this policy update immediately, as it was merely a clarification. However, USCIS still allowed interested parties an opportunity to comment by providing a 10-day comment period, as is generally provided for Policy Manual publications.

Footnotes


1. [^] See Chapter 2, Eligibility Requirements, Section A, General [6 USCIS-PM J.2(A)] and Section B, Age-out Protections For Filing with USCIS [6 USCIS-PM J.2(B)].

2. [^] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order [6 USCIS-PM J.2(C)].

3. [^] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 1, Dependency or Custody [6 USCIS-PM J.2(C)(1)].

4. [^] See Chapter 2, Eligibility Requirements, Section D, USCIS Consent [6 USCIS-PM J.2(D)].

5. [^] See Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 1, Qualifying Juvenile Court Determinations [6 USCIS-PM J.3(A)(1)].

6. [^] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 2, Parental Reunification [6 USCIS-PM J.2(C)(2)].

7. [^] See Perez v. Mortgage Bankers Assoc., 135 S.Ct. 1199 (2015).

8. [^] James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (D.C. Cir. 2000)

9. [^] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 171 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

POLICY ALERT - USCIS Special Immigrant Juvenile Classification

November 19, 2019

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual regarding the special immigrant juvenile (SIJ) classification.

AFFECTED SECTIONS

 

POLICY ALERT - EB-5 Immigrant Investor Program Modernization Final Rule

November 06, 2019

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the EB-5 Immigrant Investor Program Modernization Final Rule, published on July 24, 2019, and effective November 21, 2019.

AFFECTED SECTIONS

 

Technical Update - Replacing the Term “Foreign National”

October 08, 2019

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

AFFECTED SECTIONS

 

POLICY ALERT - Immigrant Investors and Debt Arrangements

October 30, 2018

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to clarify its policy on debt arrangements.

AFFECTED SECTIONS

 

POLICY ALERT - Geographic Area of a Regional Center

August 24, 2018

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests impact the filing of Form I-526, Immigrant Petition by Alien Entrepreneur.

AFFECTED SECTIONS

 

Technical Update - Rescinding Tenant-Occupancy Methodology

July 26, 2018

This technical update clarifies that the rescission of the policy regarding the tenant-occupancy methodology does not affect petitions pending on May 15, 2018 (the date USCIS announced the rescission).

AFFECTED SECTIONS

 

POLICY ALERT - Rescinding Tenant-Occupancy Methodology

May 15, 2018

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to reflect that, as of May 15, 2018, USCIS no longer considers tenant occupancy to be a reasonable methodology to support economically or statistically valid forecasting tools.

AFFECTED SECTIONS

 

POLICY ALERT - Documentation of Conditional Resident Status for Investors with a Pending Form I-829

May 02, 2018

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance regarding the documentation of conditional permanent resident (CPR) status for employment-based fifth preference (EB-5) immigrants.

AFFECTED SECTIONS

 

POLICY ALERT - Job Creation and Capital At Risk Requirements for Investors

June 14, 2017

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to provide further guidance regarding the job creation and capital at risk requirements for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.

AFFECTED SECTIONS

 

POLICY ALERT - Employment-Based Fifth Preference Immigrants: Investors

November 30, 2016

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the eligibility requirements for regional centers and immigrant investors.

AFFECTED SECTIONS

 

POLICY ALERT - Special Immigrant Juvenile Classification and Special Immigrant-Based Adjustment of Status

October 26, 2016

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the special immigrant juvenile (SIJ) classification and special immigrant-based (EB-4) adjustment of status, including adjustment based on classification as a special immigrant religious worker, SIJ, and G-4 international organization or NATO-6 employee or family member, among others.

AFFECTED SECTIONS

 
Current as of

CHAPTERS