Chapter 3 - Documentation and Evidence

A petitioner seeking special immigrant juvenile (SIJ) classification must submit all of the following documentation to USCIS:

Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);^[1]

A copy of the petitioner’s birth certificate or other evidence of the petitioner’s age;^[2]

Copies of the juvenile court order(s) and administrative document(s), as applicable, that establish eligibility;

Evidence of the factual basis for the juvenile court’s determinations; and

A copy of U.S. Department of Health and Human Services (HHS) consent, if applicable.

The petitioner may file Form I-360 alone or concurrently with the Application to Register Permanent Residence or Adjust Status (Form I-485), if there is an immigrant visa currently available for the SIJ immigrant classification and the petitioner is otherwise eligible.^[3]

Documentation of Age

An SIJ petitioner should submit documentation of age in the form of a valid birth certificate, official government-issued identification document, or other document that in USCIS’ discretion establishes the petitioner’s age.^[4] If primary documentation of birth is not available to the petitioner, USCIS may consider affidavits or secondary evidence of age, which may include baptismal certificates, school records, hospital records, or immunization records, in order to evaluate whether the petitioner has met the petitioner’s burden of proof by the preponderance of the evidence.

Affidavits must be sworn to by persons who have personal knowledge of the event to which they attest. Any affidavit must contain the affiant's full name and address, date and place of birth, relationship to the petitioner, if any, and complete details concerning how the affiant acquired knowledge of the event.

A. Juvenile Court Order(s) and Administrative Documents

1. Qualifying Juvenile Court Determinations

The juvenile court order(s) must provide the required judicial determinations regarding dependency or custody, parental reunification, and best interests. These determinations may be made in a single juvenile court order or in separate juvenile court orders. The order(s) should use language establishing that the specific judicial determinations were made under state law.^[5] This requirement may be met if the order(s) cite those state law(s), or if the petitioner submits supplemental evidence which could include, for example, a copy of the petition with state law citations, excerpts from relevant state statutes considered by the state court prior to issuing the order, or briefs or legal arguments submitted to the court.

USCIS looks at the documents submitted in order to ascertain the role and actions of the court and to determine whether the proceedings provided relief to the child under the relevant state law(s). The juvenile court order may use different legal terms than those found in the Immigration and Nationality Act (INA) as long as the determinations have the same meaning as the requirements for SIJ classification (for example, “guardianship” or “conservatorship” may be equivalent to custody).^[6] Orders that just mirror or cite to federal immigration law and regulations are not sufficient.

There is nothing in USCIS guidance that should be construed as instructing juvenile courts on how to apply their own state law. Juvenile courts should follow their state laws on issues such as when to exercise their authority, evidentiary standards, and due process.

Similar Basis under State Law

The language of the order may vary based on individual state child welfare law due to variations in terminology and local state practice in making child welfare decisions. If a juvenile court makes the determinations based upon a state law similar to abuse, neglect, or abandonment, the petitioner must provide evidence of how the basis is legally similar to abuse, neglect, or abandonment under state law.^[7]

Such evidence must include the juvenile court’s determination as to how the basis is legally similar to abuse, neglect, or abandonment under state law, or other evidence that establishes that the juvenile court made a judicial determination that the legal basis is similar to abuse, neglect, or abandonment under state law.^[8] Such evidence may include the petition for dependency, complaint for custody, or other documents that initiated the juvenile court proceedings. USCIS does not re-adjudicate whether the juvenile court determinations regarding similar basis comply with that state’s law, only whether they comply with the federal immigration law requirements for SIJ classification.^[9]

The fact that one or both parents is deceased is not itself a similar basis to abuse, neglect, or abandonment under state law. A legal conclusion from the juvenile court is required to establish that parental death constitutes abuse, neglect, abandonment, or is legally equivalent to a similar basis under state law.

2. Evidentiary Requirements for DHS Consent

For DHS to consent to the grant of SIJ classification, the juvenile court order(s) and any supplemental evidence submitted by the petitioner must include the factual basis for the required determinations, as well as the relief from parental abuse, neglect, abandonment or a similar basis under state law granted or recognized by the court.^[10] Relief from parental maltreatment may include the court-ordered custodial placement, or the court ordered dependency on the court for the provision of child welfare services and/or other court-ordered or court-recognized protective or remedial relief.^[11]

Factual Basis

Where the factual basis for the court’s determinations demonstrates that the juvenile court order was sought to protect the child and the record shows the juvenile court actually provided relief from abuse, neglect, abandonment, or a similar basis under state law, DHS generally consents to the grant of SIJ classification.^[12] If a petitioner does not provide a court order that includes facts that establish a factual basis for all of the required determinations, USCIS may request evidence of the factual basis for the court’s determinations. USCIS does not require specific documents to establish the factual basis or the entire record considered by the court. However, the burden is on the petitioner to provide the factual basis for the court’s determinations. Examples of documents that a petitioner may submit to USCIS that may support the factual basis for the court order include:

Any supporting documents submitted to the juvenile court, if available;

The petition for dependency or complaint for custody or other documents which initiated the juvenile court proceedings;

Court transcripts;

Affidavits summarizing the evidence presented to the court and records from the judicial proceedings; and

Affidavits or records that are consistent with the determinations made by the court.^[13]

Youth in HHS Custody

Youth in HHS Office of Refugee Resettlement (ORR) custody seeking SIJ classification may not be able to alter their custodial placement via a juvenile court and instead may seek a dependency determination from a juvenile court. In circumstances in which a youth in ORR custody receives a qualifying dependency determination under state law, USCIS may consider evidence of the court’s recognition of the ORR placement to be the protective remedial relief provided in conjunction with the dependency determination.^[14] USCIS recognizes that, generally, placement in federal custody with ORR affords protection as an unaccompanied child under federal law and removes a state juvenile court’s need to provide a petitioner with additional relief from parental maltreatment under state law.^[15]

Declaratory Judgments

A declaratory judgment generally determines the rights of parties without ordering anything to be done.^[16] In the context of juvenile court determinations, a declaratory judgment may state facts but not order custody, dependency, or make legal reunification or best interest determinations. However, a declaratory judgment may be sufficient to merit DHS consent if accompanied by or includes a qualifying court-ordered custodial placement or a declaration of dependency on the court for the provision of child welfare services and/or other court-ordered or recognized protective remedial relief.

3. Supporting Evidence

The order or supporting evidence should specifically indicate:

What type of relief the court is providing, such as child welfare services or custodial placement;

With whom the child is placed, if the court has appointed a specific custodian or guardian, (for example, the name of the person, or entity, or agency) and the factual basis for this finding;

Which of the specific grounds (abuse, neglect, abandonment, or similar basis under state law) apply to which of the parent(s) and the factual basis for the court’s determinations on non-viability of parental reunification; and

The factual basis for the determination that it is not in the petitioner’s best interest to return to the petitioner’s or the petitioner’s parents’ country of nationality or last habitual residence (for example, addressing family reunification with family that remains in the child’s country of nationality or last habitual residence).

B. Limitations on Additional Evidence

USCIS is mindful that there are often confidentiality rules that govern disclosure of records from juvenile-related proceedings. For this reason, officers generally do not request information or documents from sources other than the SIJ petitioner or his or her legal representative.^[17]

Children often do not share personal accounts of their family life with an unknown adult until they have had the opportunity to form a trusting relationship with that adult. Therefore, officers should exercise careful judgment when considering statements made by children at the time of initial apprehension by immigration or law enforcement officers to question the determinations made by the juvenile court.

Additionally, the juvenile court may make child welfare placement, custody, and best interest decisions that differ from the child’s stated intentions at the time of apprehension. However, if there is significant contradictory information in the file that the juvenile court was likely not aware of or that may impact whether a reasonable factual basis exists for the court’s determinations, officers may request additional evidence from the petitioner or his or her legal representative.

However, officers may not require or request an SIJ petitioner to contact the person or family members of the person who allegedly abused, neglected, or abandoned the SIJ petitioner.^[18]

Footnotes

[^ 1] See Instructions for Form I-360. There is no fee to file Form I-360 to seek SIJ classification.

[^ 2] See 8 CFR 204.11(d)(2).

[^ 3] For information on SIJ-based adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based Adjustment, Chapter 7, Special Immigrant Juveniles [7 USCIS-PM F.7].

[^ 4] See 8 CFR 204.11(d)(2). SIJ petitioners are not subject to the general presumption of ineligibility at 8 CFR 103.2(b)(2)(i), since that general rule is superseded by the specific provisions in 8 CFR 204.11(d)(2).

[^ 5] See 8 CFR 204.11(c)(3).

[^ 6] See INA 101(a)(27)(J).

[^ 7] See 8 CFR 204.11(d)(4).

[^ 8] See 8 CFR 204.11(d)(4)(i) and (ii).

[^ 9] See 87 FR 13066, 13084 (PDF)(Mar. 8, 2022).

[^ 10] See 8 CFR 204.11(d)(5)(i) and (ii).

[^ 11] See 8 CFR 204.11(d)(5)(ii)(A) and (B).

[^ 12] See INA 101(a)(27)(J)(iii). See 8 CFR 204.11(d)(5).

[^ 13] Such affidavits or records will be assigned low evidentiary value unless they are accompanied by evidence that the court considered the information contained therein in the course of issuing its judicial determinations.

[^ 14] For example, if the juvenile court order states that the petitioner is in ORR custody, or the underlying documents submitted to the juvenile court establish the juvenile’s placement in ORR custody, that would generally be sufficient evidence to demonstrate that the court was aware that the petitioner was residing in ORR custody. See 8 CFR 204.11(d)(5)(ii)(B).

[^ 15] See Section 462(b)(1) of the Homeland Security Act of 2002, Pub. L. 107-296 (PDF), 116 Stat. 2135, 2203 (2002).

[^ 16] See definition of “judgment” and “declaratory judgment,” Black's Law Dictionary (11th ed. 2019).

[^ 17] USCIS Fraud Detection and National Security (FDNS) officers conducting fraud investigations follow separate FDNS procedures on documentation requests.

[^ 18] See Violence Against Women Act of 2005, Pub. L. 109-162 (PDF) (January 5, 2006), codified at INA 287(h). See 8 CFR 204.11(e).

Resources

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

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

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

INA 204, 8 CFR 204 - Procedure for granting immigrant status

INA 287(h) - Protecting abused juveniles

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-290B, Notice of Appeal or Motion

I-360, Petition for Amerasian, Widow(er), or Special Immigrant

I-485, Application to Register Permanent Residence or Adjust Status

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

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 noncitizen 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).

Updates

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to incorporate changes from the Special Immigrant Juvenile Petitions Final Rule (SIJ Final Rule), including updated citations, new definitions, and clarifications.

Affected Sections

6 USCIS-PM J.1 - Chapter 1 - Purpose and Background

6 USCIS-PM J.2 - Chapter 2 - Eligibility Requirements

6 USCIS-PM J.3 - Chapter 3 - Documentation and Evidence

6 USCIS-PM J.4 - Chapter 4 - Adjudication

7 USCIS-PM F.7 - Chapter 7 - Special Immigrant Juveniles

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, 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

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual regarding the special immigrant juvenile (SIJ) classification to incorporate changes agreed to in the settlement agreement resulting from the Saravia v. Barr class action lawsuit.

Affected Sections

6 USCIS-PM J - Part J - Special Immigrant Juveniles

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 332.97 KB) between the AFM and the Policy Manual.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

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

Affected Sections

6 USCIS-PM J - Part J - Special Immigrant Juveniles

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

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

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

6 USCIS-PM J - Part J - Special Immigrant Juveniles

7 USCIS-PM F - Part F - Special Immigrant-Based Adjustment

Archived Content

This content has been superseded by the current version available in the Guidance tab. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The historical versions are provided for research and reference purposes only. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures.

The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at: https://archive.org

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