Chapter 7 - Special Immigrant Juveniles

A. Purpose and Background^[1]

Congress created the special immigrant juvenile (SIJ) classification when it enacted the Immigration Act of 1990 (IMMACT 90).^[2] Certain juveniles in the United States may be eligible for SIJ classification. Once classified as an SIJ, juveniles may be eligible to adjust status, if they meet all eligibility requirements.

B. Legal Authorities

• INA 101(a)(27)(J) – Special immigrant juveniles
• INA 203(b)(4) – Certain special immigrants
• INA 245; 8 CFR 245 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence
• INA 245(h) – Application of adjustment provisions with respect to special immigrants
• 8 CFR 245.1(e)(3) – Special immigrant juveniles
• 8 CFR 204.11 – Special immigrant juvenile classification
• Section 153 of the Immigration Act of 1990 (IMMACT 90)^[3] – Special immigrant status for certain aliens declared dependent on a juvenile court
• Section 302 of the Miscellaneous and Technical Immigration and Nationality Amendments of 1991^[4]
• Section 113 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act of 1998^[5]
• Section 235(d) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)^[6] – Permanent protection for certain at-risk children

C. Eligibility Requirements

To adjust to lawful permanent resident (LPR) status as an SIJ, an applicant must meet the eligibility requirements shown in the table below.^[7]

1. Inspected and Admitted or Inspected and Paroled

SIJs are not exempt from the general adjustment requirement that applicants be inspected and admitted or inspected and paroled.^[8] However, the INA expressly states that SIJs are considered paroled into the United States for purposes of adjustment under INA 245(a). Accordingly, the beneficiary of an approved SIJ petition is treated for purposes of the adjustment application as if the beneficiary has been paroled, regardless of the beneficiary’s manner of arrival in the United States.^[9]

2. Eligibility to Receive an Immigrant Visa^[10]

An applicant must be eligible to receive an immigrant visa to adjust status.^[11] An adjustment applicant typically establishes eligibility for an immigrant visa through an approved immigrant petition. An SIJ can establish eligibility for an immigrant visa by obtaining classification from USCIS by filing an SIJ-based Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) (SIJ petition).^[12]

Therefore, in order for an SIJ-based adjustment applicant to be eligible to receive an immigrant visa, he or she must be one of the following:

• The applicant is the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) classifying him or her as an SIJ;
• The applicant has a pending Form I-360 (that is ultimately approved); or
• The applicant is filing the adjustment application concurrently with the Form I-360 (and the Form I-360 is ultimately approved).

Verifying the Underlying Basis to Adjust Status and Determining Ongoing Eligibility^[13]

The SIJ petition should already be adjudicated and approved when the officer adjudicates the adjustment application. USCIS does not re-adjudicate the SIJ petition at the time of the adjudication of the adjustment application. However, the officer should ensure that the applicant remains classified as an SIJ and thus is eligible to adjust as an SIJ. As a result, there may be instances when USCIS may require the applicant to provide additional evidence to show he or she continues to be classified as an SIJ. In other words, the officer must verify the status of any underlying immigrant petition that forms the basis for adjustment.

Revocation of Approved Petition

USCIS may revoke an approved SIJ petition upon notice as necessary^[14] for what it deems to be good and sufficient cause,^[15] such as, if the record contains evidence or information that materially conflicts with the evidence or information that was the basis for petitioner’s eligibility for SIJ classification. USCIS issues a Notice of Intent to Revoke (NOIR) and provides the petitioner an opportunity to offer evidence in support of the petition and in opposition to the grounds alleged for revocation of the approved petition.^[16]

Furthermore, USCIS automatically revokes an approved SIJ petition,^[17] as of the date of approval, if any one of the circumstances below occurs before a decision on the adjustment application is issued:

• Reunification of the petitioner with one or both parents by virtue of a juvenile court order,^[18] where a juvenile court previously deemed reunification with that parent, or both parents, not viable due to abuse, neglect, abandonment, or a similar basis under state law;^[19] or
• Reversal by the juvenile court of the determination that it would not be in the petitioner’s best interest to be returned (to a placement) to the petitioner’s or the petitioner’s parent’s country of nationality or last habitual residence.^[20]

If one of the above grounds for automatic revocation occurs, USCIS issues a notice to the petitioner of such revocation of the SIJ petition, which means the applicant is no longer classified as a SIJ.^[21]

If the petition is revoked, either upon notice or as an automatic revocation,^[22] then the officer should deny the adjustment application because the applicant no longer has an underlying basis to adjust status.

3. Bars to Adjustment^[23]

An applicant classified as an SIJ is barred from adjustment if deportable due to engagement in terrorist activity or association with terrorist organizations.^[24] There is no waiver of or exemption to this adjustment bar if it applies. Therefore, if the terrorist-related bar to adjustment applies, an SIJ is ineligible for adjustment of status.

4. Admissibility and Waiver Requirements^[25]

In general, an applicant who is inadmissible to the United States may only obtain LPR status if he or she obtains a waiver or other form of relief, if available.^[26] In general, if a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome an inadmissibility ground that applies.^[27] USCIS may approve the application to adjust status if a waiver or other form of relief is granted and the applicant is otherwise eligible.

The following table specifies which grounds of inadmissibility do not apply to applicants seeking LPR status based on the SIJ classification.^[28]

The following table specifies which grounds of inadmissibility do apply to applicants seeking LPR status based on the SIJ classification and for which a waiver or other form of relief may be available.

An applicant found inadmissible based on any of the above applicable grounds may be eligible for an SIJ-specific waiver of these inadmissibility grounds for:

• Humanitarian purposes;
• Family unity; or
• When it is otherwise in the public interest.^[29]

The following table specifies which grounds of inadmissibility cannot be waived under the SIJ-specific waiver for such purposes.^[30]

Juvenile Delinquency

Findings of juvenile delinquency are not considered criminal convictions for purposes of immigration law. However, certain grounds of inadmissibility do not require a conviction. In some cases, certain conduct alone may be sufficient to trigger an inadmissibility ground.^[32]

Furthermore, findings of juvenile delinquency may also be part of a discretionary analysis.^[33] USCIS will consider findings of juvenile delinquency on a case-by-case basis based on the totality of the evidence to determine whether a favorable exercise of discretion is warranted. Therefore, an adjustment applicant must disclose all arrests and charges. If any arrest or charge was disposed of as a matter of juvenile delinquency, the applicant must include the court or other public record that establishes this disposition.

In the event that an applicant is unable to provide such records because the applicant’s case was expunged or sealed, the applicant must provide information about the arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. USCIS evaluates sealed and expunged records according to the nature and severity of the criminal offense.

5. Treatment of Family Members

Dependents of SIJs cannot file as derivative applicants. SIJ beneficiaries may petition for certain qualifying family members through family-based immigration after they have adjusted status to LPR.^[34] However, a juvenile who adjusts status based on an SIJ classification may not confer an immigration benefit to their natural or prior adoptive parents after naturalization.^[35] This prohibition also applies to a non-abusive, custodial parent, if one exists.

D. Documentation and Evidence

An applicant should submit the following documentation to adjust status as an SIJ:^[36]

• Application to Register Permanent Residence or Adjust Status (Form I-485), with the correct fee or with a Request for Fee Waiver (Form I-912);                                                                                    
• Copy of the receipt or approval notice (Form I-797) for the applicant’s SIJ petition (unless the applicant is filing the petition together with Form I-485);^[37]
• Two passport-style photographs;
• Copy of government-issued identity document with photograph (if available);
• Copy of birth certificate or other evidence of birth;
• Copy of passport page with nonimmigrant visa (if applicable);
• Copy of passport page with admission or parole stamp (if applicable);
• Copy of Arrival/Departure Record (Form I-94) or copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);^[38]
• Report of Immigration Medical Examination and Vaccination Record (Form I-693);^[39]
• Certified police and court records of juvenile delinquency findings, criminal charges, arrests, or convictions (if applicable);
• Application for Waiver of Grounds of Inadmissibility (Form I-601) or other form of relief (if applicable); and
• Documentation of past or present J-1 or J-2 nonimmigrant status, including proof of compliance with or waiver of the 2-year foreign residence requirement under INA 212(e) (if applicable).^[40]

E. Adjudication^[41]

1. Filing

An applicant seeking adjustment of status as a special immigrant juvenile may file his or her adjustment application with USCIS concurrently with the SIJ petition, while the SIJ petition is pending, or after USCIS approves the SIJ petition (as long as the petition is still valid), provided:

• USCIS has jurisdiction over the adjustment application;^[42] and
• The visa availability requirements are met.^[43]

2. Interview

Determining Necessity of Interview

USCIS recognizes the vulnerable nature of SIJ based applicants for adjustment of status and generally conducts interviews of SIJ based applicants for adjustment of status when an interview is deemed necessary. USCIS conducts a full review of the record and supporting evidence to determine whether an interview may be warranted.

USCIS will generally not require an interview if the record contains sufficient information and evidence to approve the adjustment application without an in-person assessment. However, USCIS retains the discretion to interview SIJ based adjustment applicants for the purposes of adjudicating the adjustment of status application, as applicable.^[44]

Conducting the Interview

Given the vulnerable nature of SIJ based adjustment applicants and the hardships they may face because of the loss of parental support, USCIS takes special care to establish a child-friendly interview environment. During an interview, USCIS avoids questioning the applicant about the details of the abuse, neglect, or abandonment suffered because these issues are handled by the juvenile court. USCIS generally focuses the interview on resolving issues related to eligibility for adjustment of status.

The applicant may bring a trusted adult to the interview in addition to an attorney or representative. The trusted adult may serve as a familiar source of comfort to the applicant, but should not interfere with the interview process or coach the applicant during the interview. Given potential human trafficking and other concerns, USCIS assesses the appropriateness of the adult to attend the interview and is observant of the adult’s interaction with the child. If USCIS has any concerns related to appropriateness of the adult’s presence, USCIS may continue the interview without that adult present. Although USCIS may limit the number of persons present at the interview, such limitations do not extend to the petitioner’s attorney or accredited representative of record.^[45]

3. Age-Out Protections

There is no age limit for SIJ-based applicants for adjustment of status. In cases where an SIJ petitioner is under 21 years of age on the date of proper filing of the SIJ petition, USCIS does not deny an SIJ-based adjustment application solely because the applicant is older than 21 years of age at the time of filing or adjudication of Form I-485.^[46]

4. Decision

Approval

The officer must determine that the applicant meets all the eligibility requirements and merits the favorable exercise of discretion^[47] before approving the application to adjust status as an SIJ. If the application for adjustment of status is approvable, the officer must determine if a visa is available at the time of final adjudication.^[48]

If approved, USCIS assigns the following code of admission to applicants adjusting under this category: 

The applicant becomes an LPR as of the date of approval of the adjustment application.^[49]

Denial

If the officer determines that the applicant is ineligible for adjustment, the officer must deny the adjustment application. The officer must provide the applicant a written reason for the denial.^[50] Although there are no appeal rights for the denial of an adjustment application, the applicant may file a motion to reopen or reconsider, or renew the application in Immigration Court. The denial notice should include instructions for filing a Notice of Appeal or Motion (Form I-290B).

Footnotes

[^ 1] For more information on the legislative history of the SIJ classification, see Volume 6, Immigrants, Part J, Special Immigrant Juveniles [6 USCIS-PM J].

[^ 2] See Pub. L. 101-649 (PDF), 104 Stat. 4978 (November 29, 1990).

[^ 3] See Pub. L. 101-649 (PDF), 104 Stat. 4978, 5005 (November 29, 1990).

[^ 4] See Pub. L. 102-232 (PDF), 105 Stat. 1733, 1744 (December 12, 1991).

[^ 5] See Pub. L. 105-119 (PDF), 111 Stat. 2440, 2460 (November 26, 1997).

[^ 6] See Pub. L. 110-457 (PDF), 122 Stat. 5044, 5079 (December 23, 2008).

[^ 7] See INA 245(a) and (c). See 8 CFR 245. See 8 CFR 245.1(a). See 8 CFR 245.1(e)(3). See Instructions to Form I-485.

[^ 8] See INA 245(a). See 8 CFR 245.1(e)(3). See Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled” [7 USCIS-PM B.2(A)].

[^ 9] See INA 245(h)(1). See 8 CFR 245.1(e)(3)(i).

[^ 10] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6] and Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section C, Eligible to Receive an Immigrant Visa [7 USCIS-PM B.2(C)].

[^ 11] See INA 245(a)(2).

[^ 12] To see what requirements applicants must meet to obtain such classification, see Volume 6, Immigrants, Part J, Special Immigrant Juveniles, Chapter 2, Eligibility Requirements [6 USCIS-PM J.2].

[^ 13] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 14] See 8 CFR 205.2(a).

[^ 15] See INA 205.

[^ 16] See 8 CFR 205.2(b).

[^ 17] See 8 CFR 204.11(j)(1).

[^ 18] Revocation will not occur, however, where the juvenile court places the petitioner with the parent who was not the subject of the nonviable reunification determination.

[^ 19] See 8 CFR 204.11(j)(1)(i).

[^ 20] See 8 CFR 204.11(j)(1)(ii).

[^ 21] See 8 CFR 205.1(b).

[^ 22] See 8 CFR 205.1(b).

[^ 23] See INA 245(c). See 8 CFR 245.1(e)(3)(ii). See Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 24] See INA 245(c)(6), which bars from adjustment any noncitizen deportable due to involvement in a terrorist activity or group under INA 237(a)(4)(B). Special immigrant juveniles are exempt from INA 245(c)(2) and INA 245(c)(8). See 62 FR 39417, 39422 (PDF) (July 23, 1997). See 8 CFR 245.1(b)(5), 8 CFR 245.1(b)(6), and 8 CFR 245.1(b)(10). INA 245(c)(7) also does not apply. See 8 CFR 245.1(b)(9). See Part B, 245(a) Adjustment, Chapter 5, Employment-Based Applicant Not in Lawful Nonimmigrant Status (INA 245(c)(7)) [7 USCIS-PM B.5]. Finally, INA 245(c)(1), INA 245(c)(3), INA 245(c)(4), and INA 245(c)(5) do not apply since a special immigrant juvenile is considered to be paroled into the United States and, when reviewing these bars, USCIS focuses on the most recent admission. See INA 245(h)(1). See 8 CFR 245.1(a) and 8 CFR 245.1(e)(3). For more information on the bars to adjustment, see Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 25] For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 26] See INA 212(a) for the specific grounds of inadmissibility.

[^ 27] See Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 28] See INA 245(h)(2)(B). See 8 CFR 245.1(e)(3). Grounds of removal under INA 237(c) that correspond with exempted inadmissibility grounds are also waived for SIJs.

[^ 29] See INA 245(h)(2)(B). See 8 CFR 245.1(e)(3)(v).

[^ 30] However, an applicant found inadmissible based on one of the grounds of inadmissibility listed below may be eligible to obtain a waiver under other statutory authorities. For more information on other types of waivers, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 31] This table includes inadmissibility grounds that cannot be waived for humanitarian purposes, family unity, or when it is otherwise in the public interest. However, an SIJ-specific waiver is available for inadmissibility under INA 212(a)(2)(A), (B), or (C) for a single offense of simple possession of 30 grams or less of marijuana. See 8 CFR 245.1(e)(3)(v)(A).

[^ 32] For example, see INA 212(a)(2)(C) (inadmissibility based on reason to believe that the noncitizen committed certain criminal acts).

[^ 33] For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 34] See IINA 101(a)(27)(J).

[^ 35] See INA 101(a)(27)(J)(iii)(II).  See 8 CFR 245.1(e)(3)(vi).

[^ 36] For information about limitations on additional evidence, see Volume 6, Immigrants, Part J, Special Immigrant Juveniles, Chapter 3, Documentation and Evidence, Section B, Limitations on Additional Evidence [6 USCIS-PM J.3(B)].

[^ 37] USCIS may also require the applicant to provide additional evidence to show the applicant continues to be classified as an SIJ. See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

[^ 38] Noncitizens admitted to the United States by CBP at an airport or seaport after April 30, 2013, may be issued an electronic Form I-94 by CBP instead of a paper Form I-94. Such noncitizens may visit the CBP website to obtain a paper version of an electronic Form I-94. CBP does not charge a fee for this service.

[^ 39] The applicant may submit Form I-693 together with Form I-485 or later at USCIS’ request. See the USCIS website for more information. For more information on when to submit Form I-693, see Volume 8, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Examination Documentation [8 USCIS-PM B.4].

[^ 40] See Part A, Adjustment of Status Policies and Procedures, Chapter 2, Eligibility Requirements, Section B, Who is Not Eligible to Adjust Status, Subsection 3. Other Eligibility Requirements [7 USCIS-PM A.2(B.3)].

[^ 41] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 42] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section D, Jurisdiction [7 USCIS-PM A.3(D)].

[^ 43] The applicant must have an immigrant visa immediately available when he or she filed the adjustment of status application and at the time of final adjudication. See Section C, Eligibility Requirements [7 USCIS-PM F.7(C)].

[^ 44] See 8 CFR 103.2(b)(9).

[^ 45] See 8 CFR 204.11(f).

[^ 46] See INA 101(b)(1) (definition of child is an unmarried person under 21 years of age). See Section 235(d)(6) of the TVPRA, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5080 (December 23, 2008) (provides age-out protection to SIJ petitioners). Although the SIJ definition at INA 101(a)(27)(J) does not use the term child, USCIS incorporated the child definition at INA 101(b)(1) into SIJ-related regulations. For more information on age-out protections for purposes of an SIJ classification, see Volume 6, Immigrants, Part J, Special Immigrant Juveniles, Chapter 2, Eligibility Requirements, Section B, Age-out Protections for Filing with USCIS [6 USCIS-PM J.2(B)].

[^ 47] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.10].

[^ 48] For more information on visa availability and visa retrogression, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

[^ 49] The date of approval is shown in the USCIS approval notice mailed to the applicant. That date is also shown on the actual Permanent Resident Card (Form I-551) the applicant receives after adjustment approval.

[^ 50] See 8 CFR 103.2(b)(19). See 8 CFR 103.3(a).