With a large number of migrant children entering the US, knowing how to effectively navigate children through an extremely complicated legal system is critical. Most children arriving at the southern border request asylum in the US based on danger to their lives in their home country. Asylum cases are, however, extremely difficult to win given current US asylum law. For children, there is a much better option called Special Immigrant Juvenile Status (SIJS).
SIJS is permanent resident status for children who have been abused, abandoned, or neglected by one or both parents. To apply, a child must have their case heard by a STATE court which has exclusive jurisdiction to make factual findings regarding abuse abandonment and neglect and recommendations on whether it is in the best interests of the child to return to their country of origin.
At Contigo Law, we typically take SIJS cases to the Utah Juvenile Courts in child custody proceedings. We ask the court to make an order granting full custody to the person with whom the child lives, be it with an adult friend, family member, or one of their parents. If the child lives with both parents the child will not typically qualify for SIJS because it requires that the court find abuse, abandonment, or neglect by one or both of the parents. In many cases, the mere fact that one or both parents live outside the US and are unable to provide support to the child living in the US is sufficient for purposes of SIJS. This is, however, a very fact-specific analysis and should be discussed in detail with an attorney prior to filing with the court.
Once the court makes the appropriate findings and order, the child may file for SIJS by submitting a Form I-360 with USCIS. Unfortunately, for El Salvador, Guatemala, and Honduras, these visas are currently backlogged for about 2.5 years. However, once you file the visa application, you will be placed in line for one of the available visas. Once the visa becomes current you may request your permanent resident card. After being a permanent resident for five years (and having good moral character during that time among other requirements) the SIJS recipient may apply for US citizenship.
Statistically speaking, if they qualify for SIJS, a child entering the US fleeing their home country is much more likely to be granted SIJS than asylum. Therefore, if you or a loved one believes they qualify for SIJS, it is vital to start the process as soon as possible as the wait list is long.
Matters become more complicated when the child is in immigration court. In such circumstances we typically want to apply for asylum as well so that the Immigration Court has an application in front of it over which it can exercise jurisdiction. (USCIS adjudicates the I-360, not the immigration court). If the child is classified as an arriving alien, the immigration court may also lack jurisdiction over the application for the green card once the I-360 is approved and current. A case may be placed on a status docket while the applications are pending, but again this is fact-specific and subject to the requirements of the immigration judge.
As you can see, the process is complicated, but very achievable. We handle many SIJS cases at Contigo Law and would love the chance to help you. Please call us at 801-676-6548 if you have any questions. Our team would be happy to review your case with you.