A. Purpose

Congress initially created the special immigrant juvenile (SIJ) classification to provide humanitarian protection for abused, neglected, or abandoned child immigrants eligible for long-term foster care. This protection evolved to include children who cannot reunify with one or both parents because of abuse, neglect, abandonment, or a similar basis under state law. While there is no longer a requirement that a child be found eligible for long-term foster care, a juvenile court finding that reunification with one or both parents is not viable is still required for SIJ classification. [1] There is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedure in issuing state court orders.

Children in a variety of different circumstances may be eligible for SIJ classification, including but not limited to:

Children who have been abused prior to their arrival in the United States, or while in the United States;

Children in federal custody with the U.S. Department of Health and Human Services, Office of Refugee Resettlement, Unaccompanied Children’s Services Program; [2] See Section 462 of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, 2202 (November 25, 2002). or

Children in the state child welfare system in the custody of a state agency (for example, foster care), or in the custody of a person or entity appointed by a state or juvenile court.

B. Background

Congress first established the SIJ immigrant visa classification in 1990. Since then, Congress has enacted several amendments. The table below provides an overview of major legislation related to SIJ classification.

Special Immigrant Juvenile Classification: Acts and Amendments

Acts and Amendments

Key Changes

The Immigration Act of 1990 [3] See Pub. L. 101-649 (November 29, 1990).

Established an SIJ classification for children declared dependent upon a juvenile court in the United States, eligible for long-term foster care, and for whom it would not be in their best interest to return to their country of origin

Miscellaneous and Technical Immigration and Nationality Amendments of 1991 [4] See Pub. L. 102-232 (December 12, 1991).

Provided that children with SIJ classification were considered paroled for the purpose of adjustment of status to lawful permanent residence

Provided that foreign national children cannot apply for admission or be admitted to the United States in order to obtain SIJ classification

The Immigration and Nationality Technical Corrections Act of 1994 [5] See Pub. L. 103-416 (October 25, 1994).

Expanded eligibility from those declared dependent on a juvenile court to children whom such a court has legally committed to, or placed under the custody of, a state agency or department

The 1998 Appropriations Act [6] See Pub. L. 105-119 (November 26, 1997).

Limited eligibility to children declared dependent on the court because of abuse, neglect, or abandonment

Provided that children are eligible only if the Attorney General (later changed to the Secretary of the Department of Homeland Security) expressly consents to the juvenile court order serving as a precondition to the grant of status

Prohibited juvenile courts from determining the custody status or placement of a child who is in the custody of the federal government, unless the Attorney General (later changed to the Secretary of the Department of Health and Human Services) specifically consents to the court’s jurisdiction

Violence Against Women Act of 2005 [7] See Pub. L. 109-162 (January 5, 2006).

Prohibited compelling an SIJ petitioner to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for SIJ classification

The Trafficking Victims Protection and Reauthorization Act (TVPRA 2008) [8] See Pub. L. 110-457 (December 23, 2008).

Removed the need for a juvenile court to deem a child eligible for long-term foster care and replaced it with a requirement that the juvenile court find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law

Expanded eligibility to include children whom a juvenile court has placed under the custody of a person or entity appointed by a state or juvenile court

Provided age-out protections so that SIJ classification may not be denied to anyone, based solely on age, who was under 21 years of age on the date that he or she properly filed the SIJ petition, regardless of the petitioner’s age at the time of adjudication

Simplified the consent requirement: The Secretary of Homeland Security now consents to the grant of SIJ classification instead of expressly consenting to the juvenile court order

Altered the “specific consent” function for those children in federal custody by vesting this authority with the Secretary of Health and Human Services, rather than the Secretary of the Department of Homeland Security

Added a timeframe for adjudication: USCIS shall adjudicate SIJ petitions within 180 days of filing

C. Legal Authorities

INA 101(a)(27)(J); 8 CFR 204.11 [9] Certain portions of the regulations have been superseded. This part provides up-to-date guidance. Special immigrant status for certain children declared dependent on a juvenile court (special immigrant juvenile)

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

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

INA 245(h) – Adjustment of special immigrant juveniles

INA 287(h) – Protecting abused juveniles

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

8 CFR 205.2 Revocation on notice

Footnotes


1. [^]

There is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedure in issuing state court orders.

2. [^]

See Section 462 of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, 2202 (November 25, 2002).

3. [^]

See Pub. L. 101-649 (November 29, 1990).

4. [^]

See Pub. L. 102-232 (December 12, 1991).

5. [^]

See Pub. L. 103-416 (October 25, 1994).

6. [^]

See Pub. L. 105-119 (November 26, 1997).

7. [^]

See Pub. L. 109-162 (January 5, 2006).

8. [^]

See Pub. L. 110-457 (December 23, 2008).

9. [^]

Certain portions of the regulations have been superseded. This part provides up-to-date guidance.