The Special Immigrant Juvenile Status program allows undocumented minor children to become lawful permanent residents of the United States. This program has been extremely helpful in light of the incoming wave of undocumented minor children from Central America.
The requirements to qualify for Special Immigrant Juvenile Status are as follows:
(1) the undocumented minor child must be under twenty-one (21) years of age;
(2) the undocumented minor child must be unmarried;
(3) the undocumented minor child must have been subject to abuse, abandonment or neglect by one or both of their parents before reaching the age of eighteen (18); and
(4) returning the undocumented minor child to their country of nationality or last habitual residence is not in the best interest of the undocumented minor child.
The Undocumented Minor Child Must be Under Twenty-One (21) Years of Age
The Immigration and Nationality Act (INA) defines a minor as an individual who is under the age of twenty-one (21). In Maryland, a minor is generally an individual who is under the age of eighteen (18). However, the Maryland legislature has made an exception to this general rule. The Maryland legislature has codified this exception in Maryland Family Code, Section 1-201(b)(10). In summary, the exception states that when a complaint is filed within the Maryland court system and there is a motion for the judge to make Special Immigrant Juvenile Status findings, a minor is an unmarried individual who is under the age of twenty-one (21). This change was made by the Maryland legislature in order to align its state laws with the federal laws of the INA.
The Undocumented Minor Child Must be Unmarried
The undocumented minor child must be unmarried at the time the petition for Special Immigrant Juvenile States is filed with the Maryland court system and must remain unmarried until they are granted Special Immigrant Juvenile Status by the United States Citizenship and Immigration Services (USCIS). Additionally, the undocumented minor child must not be engaging in certain “adult” activity. Although this is not part of the requirements to qualify for SIJS, it is something that the judge will take into consideration at the state court hearing. I have elaborated on this in the “Process” section of this document.
The Undocumented Minor Child Must Have Been Subject to Abuse, Abandonment or Neglect by One or Both of Their Parents Before Reaching the Age of Eighteen (18)
The undocumented minor child must have been subject to abuse, abandonment or neglect in accordance with the laws of Maryland. This means that although the undocumented minor child may have been subject to abuse, abandonment or neglect while residing outside of the United States, the acts will be considered and compared to what constitutes abuse, abandonment or neglect under Maryland law. This is very beneficial because some acts may not constitute abuse, abandonment or neglect outside of Maryland, whereas, those same acts constitute abuse, abandonment or neglect under the laws of Maryland.
The undocumented minor child must have been subject to abuse, abandonment or neglect before they reached the age of eighteen (18). This requirement is pretty straightforward and must be proved by the undocumented minor child, which is usually done through testimony.
Additionally, the undocumented minor child must have been subject to abuse, abandonment or neglect by one or both parents. One of the most common scenarios is where one of the parents abandons the undocumented minor child at an early age and thereafter fails to provide the minor with financial or emotional support. It is recommended that individuals consult with an attorney in order to determine whether an undocumented minor child has been the victim of abuse, abandonment or neglect.
Process
The process begins by filing a complaint for custody or guardianship with the Circuit Court in the county where the undocumented minor child and their parent/guardian resides. Generally, the undocumented minor child MUST reside with the individual that is asking to have sole custody or guardianship of the undocumented minor child.
The undocumented minor child and the person asking for sole custody or guardianship will be required to appear before a Circuit Court judge in order to prove their case. The Circuit Court judge will also take into consideration whether the undocumented minor child qualifies for Special Immigrant Juvenile Status. If the Circuit Court judge makes a favorable decision, they will issue a custody/guardianship order and a Special Immigrant Juvenile Status order.
The Special Immigrant Juvenile Status order is sent to USCIS along with various applications and documentation that makes up the Special Immigrant Juvenile Status packet. The undocumented minor child may be able to submit an adjustment packet along with the Special Immigrant Juvenile Status packet to become a lawful permanent resident depending on his country of nationality and/or country of last habitual residence.
Undocumented minor children from El Salvador, Honduras, Guatemala and Mexico are not able to submit an adjustment packet with their Special Immigrant Juvenile Status packet. The reason is that there is more demand for visas than there are available in these countries. The current wait time for a visa to become available in these countries is estimated to be one (1) year. The undocumented minor child is not able to qualify for any immigration benefit during this wait time. In other words, the undocumented minor child remains as an undocumented individual and is not able to receive a work permit while they are waiting for a visa to become available. They are only able to receive an immigration benefit once their packets have been approved and they are granted Special Immigrant Juvenile Status.
The only downside to being granted Special Immigrant Juvenile Status is that today, as the law is written, the undocumented minor child can never file a family petition on behalf of their parents to bring them to the United States.
This entire process is very technical and it is recommended that you consult with an attorney to determine if you qualify for Special Immigrant Juvenile Status.