Special Immigrant Juvenile Status and New York Family Court

Special Immigrant Juvenile Status in New York                                                         

Group of Children

 

Immigration and family law come together in this area of law. Some children living in the U.S. without a legal immigration status may need to access humanitarian protection for reasons of abandonment, abuse, or neglect. Special Immigrant Juvenile Status (SIJS) is a classification that may allow for vulnerable children to apply for permanent and lawful residence in the United States. To qualify for SIJS, the child must meet the following criteria:

  • Applicant must be under 21 years of age
  • Applicant must be unmarried
  • Applicant must be declared dependent within Juvenile court (this is where a family law attorney can be of assistance)
  • Reunification with one or both of the applicant’s parents must be considered not viable due reasons of neglect, abandonment, abuse, or a similar basis under the law
  • The court must determine that it is not in the best interests of the applicant to return to their last country of residence, or country of nationality.

There are numerous benefits to obtaining Special Immigrant Juvenile Status. Firstly, SIJS waives numerous forms of inadmissibility that could otherwise restrict an immigrant from establishing themselves as a permanent lawful resident. SIJS waives working without authorization, unlawful entry, certain immigration violations, and status as a public charge. Applying for SIJS requires the consideration of numerous steps, with the help of a trained attorney.

A juvenile court is the court within New York that has jurisdiction under the law to make determinations regarding the care and custody of children. In many states, this can refer to delinquency cases, dependency cases, or probate and guardianship matters.

Step 1: Finding Reason for SIJS

SIJS in a New York Family Court can be declared when the court is shown that that juvenile meets the eligibility to have that status. The minor in question must engage in a proceeding within Surrogate’s or Family court where he or she resides. As a factor in this proceeding, the court must issue a “special findings order”, which is used to declare the eligibility of the child for SIJS. Generally, this means that the New York court must find that the child has been neglected, abandoned, or abused by one or both parents. It must also be established that it is not in the best interests of the child to return to their home country. A child in need of SIJS can make it to the court system in one of the following ways:

  1. A family is reported to the welfare agency as a result of neglect or abuser to children. This case could enter juvenile court in attempting to determine whether the child should be placed with a private guardian or become a ward of the state.
  2. A non-abusive family member or parent could petition for custody as part of a paternity or divorce case, alleging abandonment, abuse, or neglect.
  3. A friend or family member may issue a court petition to become the legal guardian of the child. Often, this option is used when the parents have previously left that child with a relative or friend – and have stopped taking care of the child.

Although the most common way for the family court to obtain jurisdiction over a minor is with guardianship – it is also possible to bring about a motion requesting a special findings order through adoption, neglect, custody, or permanency hearings for children in foster care, or PINS – person in need of supervision – proceeding.

Whatever process is used, an experienced attorney is useful to assist to bring the abandonment, neglect, or abuse of the child to the attention of the court – proving that it is not in the best interests of the child to return to a home country. The family members and child may be interviewed and required to testify in court, and as much evidence as possible should be gathered to support the case – from reports by teachers and police, to medical records and testimonies.

Step 2: Petition for SIJS

Once the court has found evidence allowing for a special findings order, the child may file a petition with the USCIS requesting SIJS. The minor applies to the United States Citizenship and Immigration Service for SIJS in the hopes of being granted work authorization and lawful permanent residence. The process is best left to am immigration attorney.  The application requires the inclusion of documents such as a birth certificate, as well as copies of the court order of custody, dependency, or guardianship. The child or someone acting on their behalf must complete all relevant areas. USCIS will review the information given and determine whether the child in question qualifies for SIJS. If more evidence is required, they may issue a request for evidence. Importantly, USCIS is required to make a decision regarding the status of the child within the applicable time period from when the petition was first submitted.

Step 3: Application for Permanent Residency

An application to adjust status or register permanent residence, may be submitted alongside the petition for SIJS – so long as both are properly completed. However, it’s important to note that a decision cannot be made until and unless Special Immigrant Juvenile Status is granted.  Special Immigrant Juveniles may ask that the USCIS to waive the fee for application or a request for fee waiver. Otherwise, the process of receiving permanent residency is similar to the process used to obtain family-based visas.

To learn more about cases regarding family law, children and the family court component of applying for SIJS status, please feel free to explore our other blog entries and web pages. If you would like to speak to Mr. Shapiro about your own particular case, then feel free to call about your free initial consultation. It would be our pleasure to speak with you regarding your legal needs.