published August 10, 2015
For a child who is under 21 years of age and in the U.S. without documentation or as a visa overstay, the federal “Special Immigrant Juvenile Status” statute may indeed create a path to permanent resident, aka “green card”, status. Under this statute, a child who has been abandoned, neglected, or abused by their parent, may be able to adjust to permanent resident status in the U.S. – and without having to depart to appear at a US consular post abroad, no matter their current status or means of entry.
However, the essential element of such a filing is an appropriate state court custody or guardianship order, wherein specific, statutorily required findings relating to the child are included in the order. More specifically, the foundational state court order must explicitly find:
a) the child can be legally placed in the custody of a private person (or state or private agency),
b) it is not in the child’s best interest to return to their home country,
c) the child cannot be reunited with their parent because of abandonment, abuse, neglect OR some other similar reason under state law.
Judicial custody or guardianship orders from juvenile, family, or probate courts will meet this requirement and again, the process of facilitating immigration benefits for such a child indeed starts with entry of an order in a qualifying court proceeding. Aside from cases where a child might already be in government custody for one reason or another (such as a protective state agency), the court proceeding often takes the form of a guardianship petition filed by a family member or family friend in the U.S. who is caring for the child.
The court order, such as for granting guardianship, cannot be entered for the sole purpose of facilitating an immigrant benefit. Instead, it must include a specific and detailed factual basis to support the conclusion that reunification with their parent is not viable due to one of the above reasons (abuse, neglect, abandonment, or the like) and that it is not in the child’s best interest to return to their home country. Furthermore, the child must be unmarried throughout this process and for most guardianship based cases, the court will require the child to be under 18 years of age for entry of a guardianship order.
Once the appropriate court order is obtained, the child can proceed with the filing of Form I-360 and I-485, adjustment of status filings (can be filed concurrently), filings that generally, if all requirements are met, lead to the child be granted permanent resident status in less than a year.
PUBLISHED August 10, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois