Special Immigrant Juvenile Adjustment of Status

 

Introduction

The United States Citizenship and Immigration Services (USCIS) may grant special immigrant juvenile classification to certain alien minors in the United States. The special immigrant juvenile provisions and associated adjustment of status provisions provide an important form of relief for certain abused and neglected alien children in the United States. In this article, we will examine the rules for seeking adjustment of status either in conjunction with an application for special immigrant juvenile classification or after the approval of an application for special immigrant juvenile classification.

Before reading this article, please see our comprehensive articles on the rules for eligibility for special immigrant juvenile classification [see article] and the adjudication process for special immigrant juvenile petitions [see article]. To learn about issues related to special immigrant juveniles generally, please see our growing selection of articles on the subject [see category]. We cover topics relating to adjustment of status in a separate area of the site [see category].

Sources

The USCIS addresses adjustment of status for special immigrant juveniles in its Policy Manual (PM) at 7 USCIS-PM F.7 [PDF version]. In this article, we will work through the USCIS PM while expanding on key points for a better understanding of the issues.

Eligibility Requirements for Special Immigrant Juvenile Adjustment of Status

The USCIS provides a chart of eligibility requirements for special immigrant juvenile adjustment of status at 7 USCIS-PM F.7(C). The chart is based on sections 245(a) and (c) of the Immigration and Nationality Act (INA), the implementing regulations at 8 C.F.R. 245, 8 C.F.R. 245.1(a), and 8 C.F.R. 245.1(e)(3), and the instructions to the Form I-485, Application to Register Permanent Residence or Adjust Status. We have reproduced the chart from the USCIS-PM below for your convenience:

We will now examine in turn each of the requirements for adjusting status as a special immigrant juvenile.

1. Special Immigrant Juvenile Must be Inspected and Admitted or Inspected and Paroled

Under the INA at section 245(a), an individual must be inspected and admitted or inspected and paroled in order to be eligible for adjustment of status. Under 8 C.F.R. 245.1(e)(3), special immigrant juveniles are not exempt from this requirement. However, under section 245(h)(1) of the INA, an alien who is granted special immigrant juvenile classification is deemed to have been paroled into the United States for purposes of eligibility for adjustment of status under section 245(a). This means that even an alien who was neither inspected and admitted nor inspected and paroled prior to being approved for special immigrant juvenile classification will be treated as if he or she was paroled for purposes of adjustment of status by virtue of having been approved for special immigrant juvenile classification.

2. Special Immigrant Juvenile Must be Eligible to Receive an Immigrant Visa

Under section 245(a)(2) of the INA, an alien must be eligible to receive an immigrant visa in order to be eligible for adjustment of status. In order to establish eligibility for an immigrant visa, a special immigrant juvenile-based adjustment of status applicant must:

Be the beneficiary of an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, classifying him or her as a special immigrant juvenile;
Have a pending Form I-360 that is ultimately approved; or
Be filing the adjustment application concurrently with the Form I-360, which is then subsequently approved.

The USCIS-PM instructs USCIS officers to adjudicate a special immigrant juvenile-based adjustment of status application after the underlying Form I-360 is approved. This is because the adjustment application is based on the applicant having been granted special immigrant juvenile classification.

When adjudicating an adjustment of status application based on an approved special immigrant juvenile petition, USCIS officers are instructed to “not re-adjudicate the SIJ petition…” However, while the USCIS will not reconsider the underlying special immigrant juvenile classification, it must ensure that the applicant remains eligible for special immigrant juvenile classification. If necessary, the USCIS may require the adjustment applicant to submit additional evidence to establish that he or she continues to be classified as a special immigrant juvenile. In short, while it is necessary that the applicant was eligible for special immigrant juvenile classification at the time the Form I-360 was approved, he or she must remain classified as a special immigrant juvenile throughout the adjudication of the Form I-485 adjustment application.

If an approved special immigrant juvenile petition is revoked while an adjustment application is pending, the adjustment application must be denied. Please see the relevant section of our article on the adjudication of special immigrant juvenile petitions to learn more about when an approved petition may be automatically revoked or revoked on notice [see section]. It is important to remember that under statute, special immigrant juveniles have what is called “age out protection”; if the Form I-360 is filed before the petitioner turns 21, the petitioner remains qualified for SIJ treatment [see section].

3. Limited Bar to Adjustment of Status for Special Immigrant Juveniles

A special immigrant juvenile who is deportable under section 237(a)(4)(B) is ineligible for adjustment of status under section 245(a)(6). Section 237(a)(4)(B) incorporates certain terrorism-related inadmissibility grounds. We discuss the provision in a section of our article on the deportability statutes for security and related grounds [see section].

However, special immigrant juveniles are exempt from two other general bars to adjustment of status. First, the bar in section 245(c)(2) covering unauthorized employment and other lapses in status does not apply to special immigrant juveniles. Special immigrant juveniles are also exempted from section 245(c)(8), which covers aliens who accepted unauthorized employment while their presence in the United States was not authorized and those who violate the terms of their nonimmigrant visas (see 62 FR 39417, 39422 (Jul. 23, 1997)). Sections 245(c)(1), (c)(3)-(5) do not apply to special immigrant juvenile adjustment applicants since the issues are ameliorated by the fact that special immigrant juveniles are deemed to have been paroled for purposes of adjustment by virtue of the approval of the Form I-360.

4. Admissibility and Waivers for Special Immigrant Juvenile Adjustment Applicants

An alien must be admissible to the United States in order to be granted an immigrant visa or adjustment of status. If the alien is inadmissible, he or she must first obtain a waiver of inadmissibility [see category] or other type of relief, where applicable. If a waiver or other form of relief is granted, the adjustment application may be granted if the applicant is otherwise eligible.

Certain grounds of inadmissibility do not apply to special immigrant juveniles seeking adjustment of status. This means that for specified grounds, a special immigrant juvenile need not obtain a waiver or other form of relief in order to be eligible for adjustment of status. The inadmissibility grounds that do not apply to special immigrant juveniles are listed in section 245(h)(2)(B) of the INA and in the implementing regulations at 8 C.F.R. 245.1(e)(3):

INA 212(a)(4) — Public Charge
INA 212(a)(5)(A) — Labor Certification
INA 212(a)(6)(A) — Present without admission or parole
INA 212(a)(6)(C) — Misrepresentation
INA 212(a)(6)(D) — Stowaways
INA 212(a)(7)(A) — Documentation requirements for immigrants
INA 212(a)(9)(B) — Unlawful presence

Furthermore, associated deportability grounds under section 237(c) of the INA are waived for special immigrant juveniles.

Inadmissibility provisions not listed at section 245(h)(2) do apply to special immigrant juveniles seeking adjustment of status. Accordingly, a special immigrant juvenile adjustment applicant would have to obtain a waiver of inadmissibility or other form of relief from applicable grounds of inadmissibility in order to be eligible for adjustment of status. The inadmissibility grounds that do apply to special immigrant juveniles are as follows:

INA 212(a)(1) — Health-related
INA 212(a)(2) — Crime-related
INA 212(a)(3) — Security-related
INA 212(a)(6)(B) — Failure to attend removal proceedings
INA 212(a)(6)(E) — Smugglers
INA 212(a)(6)(F) — Subject of civil penalty
INA 212(a)(6)(G) — Student visa abusers
INA 212(a)(8) — Ineligible for citizenship
INA 212(a)(9)(A) — Certain foreign nationals previously removed
INA 212(a)(9)(C) — Foreign nationals unlawfully present after previous immigration violations
INA 212(a)(10) — Practicing polygamists, guardians required to accompany helpless persons, international child abductors, unlawful voters, and former citizens who renounced citizenship to avoid taxation

Section 245(h)(2)(B) of the INA provides for a special immigrant juvenile-specific waiver for adjustment of status purposes. The USCIS may grant a waiver of inadmissibility to a special immigrant juvenile applicant for one of the following reasons:

Humanitarian purposes;
Family unity; or
When it is otherwise in the public interest.

Section 245(h)(2)(B) prevents the USCIS from weighing the special immigrant juvenile's relationship with his or her parents or adoptive parents in considering a waiver. This prohibition also extends to a parent who was not determined by a juvenile court to have abused the juvenile .

It is also important to note that the section 245(h)(2)(B) waiver applies only for the purpose of a special immigrant juvenile's adjustment of status application.

However, the special immigrant juvenile-specific waiver at section 245(h)(2) cannot waive the following grounds of inadmissibility:

INA 212(a)(2)(A) — Conviction of certain crimes
INA 212(a)(2)(B) — Multiple criminal convictions
INA 212(a)(2)(C) — Controlled substance traffickers
INA 212(a)(3)(A) — Security and related grounds
INA 212(a)(3)(B) — Terrorist activities
INA 212(a)(3)(C) — Foreign policy related
INA 212(a)(3)(E) — Participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing

In certain cases, a special immigrant juvenile inadmissible on a ground that is not waivable under section 245(h)(2)(B) may be eligible for a waiver under a different provision of law.

The USCIS-PM devotes a subsection to addressing juvenile delinquency. A finding of juvenile delinquency does not constitute a “conviction” under the INA. Nevertheless, certain court findings that supported the juvenile delinquency adjudication could support an inadmissibility determination. For example, the inadmissibility provision in section 212(a)(2)(A) of the INA reaches an alien who admits to having committed a crime involving moral turpitude, meaning that a “conviction” is not required for the inadmissibility ground to adhere.

Furthermore, even if a finding of juvenile delinquency does not render a special immigrant juvenile adjustment applicant inadmissible, the USCIS may weigh the finding in determining in its discretion whether granting the adjustment applicant is warranted. An adjustment applicant “must disclose all arrests and charges,” including “the court order or other public record that establishes” a disposition of juvenile delinquency. If the applicant cannot provide these records due to the fact that his or her case was expunged or sealed, he or she must still “provide information about the arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction.”

5. Family Members of Special Immigrant Juveniles

Under section 101(a)(27)(J) of the INA, family members of special immigrant juveniles cannot be included as derivatives in adjustment of status applications. Once a special immigrant juvenile adjusts his or her status to that of an alien lawfully admitted for permanent residence, he or she may then file an immigrant visa petition on behalf of any qualifying relatives. However, if the special immigrant juvenile subsequently becomes a U.S. citizen, he or she is prohibited from filing an immigrant visa petition on behalf of his or her natural or prior adoptive parents under section 101(a)(27)(J)(iii)(II). This prohibition applies even if the parent in question was not determined by the juvenile court to have been abusive.

Documentation and Other Evidence for Special Immigrant Juvenile Adjustment of Status Applicants

7 USCIS-PM F.7(D) lists the documentation and evidence that must be submitted with a Form I-485 adjustment petition based on an approved Form I-360 for special immigrant juvenile classification:

Form I-485 with fee, or with a Form I-912, Request for Fee Waiver [see article];
Form I-797, Receipt Notice, for the applicant's special immigrant juvenile petition (unless the applicant is filing the Form I-485 concurrently with the Form I-360 for special immigrant juvenile classification);
Two passport-style photographs;
Form G-325A, Biographic Information Sheet, if the applicant is 14 or older;
Copy of government-issued identity with photograph (if available);
Copy of birth certificate;
Copy of passport page with nonimmigrant visa (if applicable);
Copy of passport page with admission or parole stamp (if applicable);
Copy of Form I-94, Arrival Departure Record, or copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);
Any evidence, if needed, to show that the terrorist-related bar to adjustment of status does not apply;
Form I-693, Report of Medical Examination and Vaccination Record [see article];
Certified police and court records of juvenile delinquency findings, criminal charges, arrests, or convictions (if applicable);
Form I-601, Application for Waiver of Grounds of Inadmissibility, or other form of relief (if applicable); and
Documentation of past or present J1 or J2 nonimmigrant status, including proof of compliance with the 2-year foreign residence requirement found in section 212(e) of the INA (if applicable).

Certain forms and evidence are required with all special immigrant juvenile-based adjustment applications and some are only required where specific factors or facts apply.

Adjudication of the Special Immigrant Juvenile-Based Adjustment of Status Application

The USCIS discusses the filing and adjudication of special immigrant juvenile-based adjustment of status applications at 7 USCIS-PM F.7(E).

1. Filing the Special Immigrant Juvenile-Based Adjustment of Status Application

An alien seeking adjustment of status as a special immigrant juvenile may file his or her adjustment application (1) concurrently with the special immigrant juvenile petition, (2) while the special immigrant juvenile petition is pending, or (3) after the special immigrant juvenile petition is approved. However, in order to file for special immigrant juvenile-based adjustment, (1) the USCIS must have jurisdiction over the adjustment application, and (2) the visa availability requirements must be met. The second point is the primary guide for whether an alien may file a special immigrant juvenile-based adjustment application at a given time. In order to apply for adjustment, an immigrant visa must be immediately available to the applicant if such application is approved. An individual may check immigrant visa availability in the special immigrant fourth preference category for adjustment of status purposes by consulting the monthly immigrant visa bulletin published by the U.S. Department of State and corresponding guidance for adjustment applicants from the USCIS [see article].

2. Special Immigrant Juvenile Adjustment Interviews

In recognition of the vulnerable nature of special immigrant juveniles, the USCIS seeks to conduct adjustment of status interviews only when necessary. The interview guidance for special immigrant juvenile-based adjustment applications is identical to the guidance for when to conduct interviews and conducting interviews in adjudicating petitions for special immigrant juvenile classification, which we addressed in our article on that subject [see category].

3. Age-Out Protections

We noted earlier in this article that provided that a special immigrant juvenile filed his or her petition prior to turning 21 years of age, he or she has “age-out protection,” and a special immigrant juvenile-based adjustment application would not be denied solely because he or she reached 21 years of age. We address this issue in more detail in our article on eligibility for special immigrant juvenile classification [see section].

4. Approval/Denial of Special Immigrant Juvenile Adjustment of Status Application

Provided that a special immigrant juvenile meets the eligibility requirements for adjustment of status, the decision on whether to grant adjustment is in the discretion of the USCIS. Adjustment will be granted if the USCIS determines that the applicant is (1) eligible and (2) merits the favorable exercise of discretion.

If the USCIS determines that the favorable exercise of discretion on the adjustment application is warranted, it will determine whether an immigrant visa is immediately available to the applicant. A special immigrant juvenile becomes a lawful permanent resident when the application is approved. The class of applicant and code of admission for special immigrant juvenile adjustees is “SL6.”

If the USCIS determines that the special immigrant juvenile is ineligible for adjustment of status, the application must be denied. Under 8 C.F.R. 103.2(b)(19) and 8 C.F.R. 103.3(a), the USCIS is required to provide a reason for the denial. An applicant may not appeal from a decision to deny an adjustment of status application. However, the applicant may file a motion to reopen or reconsider or renew the application in immigration court. The denial notice should include information on how to file the Form I-290B, Notice of Appeal or Motion.

Conclusion

The special immigrant juvenile provisions and associated adjustment of status provisions provide an important form of relief for certain abused and neglected alien children in the United States. Due to the complexity of the process, it is important to work with an experienced immigration attorney in determining whether special immigrant juvenile-based relief may be appropriate in a specific case, and for guidance on filing for special immigrant juvenile classification and adjustment of status if it is. In cases where special immigrant juvenile classification is unavailable, an individual may be eligible for other forms of relief that could be identified by an immigration attorney.

To learn more about special immigrant juvenile classification and related issues, please see our growing selection of articles on the subject [see category].