Children who have been adopted by US citizens often still need additional immigration processes to become U.S. citizens. Adoption laws are extremely complex, and we urge anyone contemplating adoption of a non-U.S. citizen child to consult with both an adoption attorney and an immigration attorney to ensure that the child will not be left undocumented. In order to be recognized by USCIS most adoptions must be finalized before the child is 16 years old. The child and adoptive parent may need to live together for a certain period of time before the immigration status can be normalized. There are additional requirements, which vary depending upon the country of origin of the child. We would be happy to consult with anyone considering adoption.
SIJS-Special Immigrant Juvenile Status
Special Immigrant Juvenile Status (SIJS) permits many foreign children in the U.S. who have been abused, abandoned, or neglected by one or both parents to obtain lawful permanent residence, otherwise known as a “green card.” This is a vastly underutilized category, which could help many more vulnerable children if only they knew about it. A juvenile court or equivalent must determine that it has jurisdiction over the child, who must usually be under 18 (sometimes under 21). The abuse, abandonment or neglect must have occurred before age 18. A relative or close friend can petition for custody of the child, or the child can be a candidate for foster care.
A court must issue findings that the child is an unmarried minor that was subjected to abuse, abandonment, or neglect, and would be better off staying in the U.S. rather than returning to his or her home country. It is advisable for the court to retain jurisdiction until the child is 21 or becomes a lawful permanent resident. Once these findings are made, usually with the assistance of a skilled family lawyer, we can assist the young person in applying for SIJS and a green card. The process must be completed before the child turns 21. SIJS recipients cannot sponsor their parents for any kind of benefit. However, in most cases, their biological parents are already ineligible for any kind of benefit. After five years as a Lawful Permanent Resident, a person with SIJS can apply to become a United States citizen.
Legal custody and SIJS is a more feasible option for many people who are consider adoption of a relative or family friend. Adoption law and immigration law are extremely complex, and in most cases it is not possible for a non-citizen child to gain lawful status through adoption by a relative or family friend. This is especially true if the child’s country of origin is a signatory to the Hague Convention. See here for a list of Hague Convention countries.
We encourage potentially eligible youth and/or those who are or wish to become their guardians to contact us to discuss SIJS.
DACA-Deferred Action for Childhood Arrivals
DACA stands for Deferred Action for Childhood Arrivals. It is not a visa category, and does not grant a full lawful status, however, it does provide employment authorization and a temporary right to remain in the United States for teens and relatively young adults who meet the criteria. To qualify for DACA, the applicant must have come to the U.S. before turning 16 and established a home here. The person must also have been under the age of 31 on June 15, 2012, and must have been physically present in the U.S. on June 15, 2012. He or she must also have been without legal immigration status on that date and must have resided continuously in the U.S. from June 15, 2007 to the time of application. At the time of applying, the individual must either be enrolled in school, have graduated from high school or a GED program, or be an honorably discharged veteran. Furthermore, the applicant cannot have been convicted of a felony, a “significant misdemeanor” or three or more misdemeanors of any kind, and must not pose a threat to national security or public safety. A “significant misdemeanor” includes driving while intoxicated, domestic violence, sexual abuse or exploitation, burglary, firearms offenses, drug distribution, or any offense for which the individual served more than 90 days in jail. For many young people, being “DACAmented” allows them to come out of the shadows, and legally work, study, and drive. We encourage those who think they may qualify for DACA to schedule a consultation. For more information about DACA, see prior BKM&M blog posts and other resources.