Throughout its history, the United States has been a refuge for oppressed people from around the world. The Pilgrims, the Quakers, the Amish, and countless others came to this country in centuries past, while in the more recent past immigrants have been Cubans, Jews, Southeast Asians, and others. What those diverse people shared was a belief that America could offer them refuge from government oppression. The United States has always been at the forefront of protection issues, and traditionally has granted sanctuary to victims of human rights abuses from around the world. This refuge or protecting in the USA, however, is not limited to victims of political oppression but also is available to those who are victims of domestic violence and abuse specially minors. With an objective to provide protection to these minors who are victims of domestic abuse, Congress, in 2008, enacted a new statute, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, (TVPRA 2008). The statute expands the definition of Special Immigrant Juvenile so that more children can qualify for the status, provides greater protections from aging out, removes additional grounds of inadmissibility to lawful permanent residence, and requires the US government to process the cases within 180 days for those undocumented youth who qualify for SIJS. The Trafficking Victims Protection and Reauthorization Act has expanded the definition of Special Immigrant Juvenile Status (SIJS) to allow undocumented immigrant youth to petition for legal status based on abuse, neglect, or abandonment by one or both parents. SIJS waives unlawful entry, working without authorization, status as a public charge, and certain immigration violations. Once a minor receives SIJS, he/she will be able to adjust his/her status to that of a lawful permanent resident, obtain work authorization, and eventually apply for U.S. citizenship. To be eligible under SIJS, one must be (a) under 21 at the time of filing, (b) Currently must be unmarried, and (c) Must be present in the United States.
Further, SIJS visa program is different from other types of visas in that it requires coordination with a state family or Surrogate court. Special Immigrant Juvenile Status has two prong tests. First, the minor has to engage in a custody/adoption proceedings in the Family or Surrogate’s Court in the county where he/she resides. As part of this proceeding, the court is to find minor’s eligibility for SIJS. Besides a guardianship petition, it is also possible to file a petition requesting an order though a custody, neglect, adoption, permanency hearing for children in foster care etc., proceeding. An order from a Family Court or Surrogate Court granting custody/adoption is a pre-requisite to applying for SIJS status. On February 5, 2014, the New York Appellate Division, Second Department, stated that New York State Family Courts do in fact have the authority to appoint a natural parent to be the guardian of his or her own children. The court explained that under the Surrogate’s Court Procedure Act, any person may petition for guardianship of an infant. SCPA §1703. Therefore, the court reasoned that since the statute does not impose any limitations, appointment of guardianship may also be granted to a natural parent. The court’s reasoning was based upon prior decisions involving contests for guardianship between a natural parent and a relative or nonrelative of a child, where the natural parent has been named as the guardian or co-guardian of the child. Matter of Revis v. Marzan (100 AD 3d 1004); Matter of Justina S.(180 AD 2d 641).
One is to keep in mind that a state Family court and/or Surrogate court that grants custody/adoption petition does not make any immigration decision. After receiving this order from the Family or Surrogate’s Court, one has to go through the second stage, i.e., the one is to then apply to the United States Citizenship and Immigration Service (USCIS) for SIJS. Though USCIS one will get SIJS that would bestow upon the child lawful permanent residence and work authorization.
Whether one receives one’s special immigrant juvenile visa and green card concurrently or applies for an adjustment of status after your SIJ application is approved, one generally receives most of the same rights and privileges as other lawful permanent residents. If the petition is approved and the child becomes a lawful permanent resident, he or she will have access to financial aid for college, be able to work legally, be eligible for some public benefits, and be able to apply for US citizenship five years after becoming a permanent resident. However; one is to keep in mind that the granting of SIJ status is based on allegations of abuse, abandonment or neglect by the applicant’s parents, a person who receives a green card or even ultimately citizenship through the SIJ program cannot petition for a green card on behalf of those parents. Moreover, SIJ program participants cannot petition on behalf of their siblings until they become U.S. citizens through naturalization.
“Immigration law is extremely complicated-and with children, more so,” says Lenni Benson, a New York Law School professor and director of Safe Passage, a nonprofit that provides legal assistance to immigrant children in the state. Since expertise in both the family law and immigration law is required for SIJS, therefore, it’s better to retain the services of a competent attorney for these cases.
(The author, an Attorney at Law, is licensed to practice law in the States of New York, Connecticut, Virginia, United States Court of Appeals for the Federal Circuit, U.S. Tax Court, U.S. District Court; Southern District of NY, U.S. District Court; Eastern District of NY. He works as an attorney with Anand Ahuja Associates, Attorneys at Law and International Business Consultants, 76 North Broadway Suite # 2000, Hicksville, NY 11801. He can be reached at anandesq@hotmail.com or on phone nos. (516) 502-3262, and (718) 850-1952.)