Introduction

On March 7, 2022, the United States Citizenship and Immigration Services (USCIS) updated its policy manual to instruct officers on how to consider and grant deferred action and employment authorization for aliens classified as Special Immigrant Juveniles [see category] who are ineligible to apply for adjustment of status [see article] solely on account of visa number availability.

Policy Alert [link]
Policy Manual Guidance 2022 [link]

Below, we will summarize the rules governing deferred action for certain Special Immigrant Juveniles set forth in the USCIS Policy Manual, linked above.

Special Immigrant Juvenile Adjustment

An alien who is granted Special Immigrant Juvenile classification may apply for adjustment of status if an immigrant visa number is immediately available in the employment-based fourth preference category (EB4). There is an annual limit on the number of EB4 visas that can be issued in a given year. If there is no visa number available for a Special Immigrant Juvenile, he or she must wait until his or her priority date becomes current to apply for an immigrant visa.

Special Immigrant Juveniles and Deferred Action

The USCIS’s new deferred action policy applies to aliens who (A) have been granted Special Immigrant Juvenile classification and (B) are precluded from applying for adjustment of status solely due to the fact that their priority date for applying for an immigrant visa is not current. The USCIS may consider such Special Immigrant Juveniles for “deferred action” — which the USCIS defines as “an act of prosecutorial discretion that defers proceedings to remove a noncitizen from the United States for a certain period of time.” Deferred action is not lawful immigration status. The USCIS may, in its discretion, grant employment authorization to certain aliens who are benefiting from deferred action.

Process For Granting Deferred Action to Special Immigrant Juvenile

The USCIS will not accept requests for deferred action from Special Immigrant Juveniles. This means that if a Special Immigrant Juvenile is unable to apply for adjustment of status solely because he or she does not have an immigrant visa number immediately available, he or she cannot affirmatively apply for deferred action. Instead, “USCIS automatically conducts deferred action determinations for such persons.”

The USCIS will make deferred action determinations for Special Immigrant Juveniles on a case-by-case basis. In so doing, the USCIS will consider the totality of the evidence, thereby weighing the positive and negative factors in each case. The decision whether to grant deferred action is entirely discretionary. “USCIS may generally grant deferred action if, based on the totality of the facts and circumstances of the case, the positive factors outweigh the negative factors.”

The USCIS provided a list of general positive equities that would weigh in favor of granting deferred action to a Special Immigrant Juvenile:

Special Immigrant Juvenile has an approved Form I-360 and will be eligible to apply for adjustment of status as soon as an immigrant visa is available.
In most cases, there are positive equities related to the fact that the alien satisfied the eligibility criteria for Special Immigrant Juvenile classification.

Provided that the USCIS finds that the positive equities outweigh the negative equities and the Special Immigrant Juvenile is otherwise eligible, it may, in its discretion, grant deferred action.

Employment Authorization

A Special Immigrant Juvenile who has been granted deferred action may seek employment authorization for the period covered by the grant of deferred action. While Special Immigrant Juveniles cannot affirmatively apply for deferred action, they can affirmatively apply for employment authorization after being granted deferred action. The USCIS will not automatically consider a deferred action grantee for employment authorization.

In order to apply for employment authorization, the Special Immigrant Juvenile who has been granted deferred action must file a Form I-765, Application for Employment Authorization, and indicate on the form that he or she is seeking employment authorization under eligibility category (c)(14).

Period of Deferred Action

The USCIS may authorize deferred action for a Special Immigrant Juvenile for a period of four years. This period may be extended if the Special Immigrant Juvenile remains ineligible for adjustment of status solely on account of there being no visa number available at the end of the deferred action period. A Special Immigrant Juvenile whose period of deferred action is about to lapse may affirmatively request an extension 150 days before the expiration of the deferred action period. Extension requests will be adjudicated based on the same guidance that governs the automatic consideration of deferred action in the first instance.

Termination

The USCIS may terminate a grant of deferred action and revoke any associated grant of employment authorization at any time in its discretion. The USCIS explained that it may terminate a grant of deferred action if it determines that the favorable exercise of discretion in granting deferred action is no longer warranted, if the alien’s Form I-360 petition for Special Immigrant Juvenile classification is revoked, or if the former grant of deferred action (and, if applicable, employment authorization) was granted in error. That list is non-exhaustive, and the USCIS may revoke a grant of deferred action for unlisted reasons in the exercise of its discretion.