Who Is Eligible for SIJS?
To qualify for SIJS, a child must meet all of the following criteria:
Under 21 and unmarried: Must be under 21 years old and unmarried at the time of filing with USCIS.
Present in the United States: Physically present in the U.S. at the time of filing.
State court jurisdiction: Subject to jurisdiction of a state juvenile court (dependency, delinquency, family, probate, or other juvenile court).
Reunification findings: State court has found that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or similar basis under state law.
Best interest finding: State court has found that returning to the child's home country (or country of last habitual residence) is not in the child's best interest.
Who Are "Similar" Basis Children?
The "similar basis" language allows state courts to identify other situations meeting SIJS standards under state law:
Examples include: Severe neglect, parents unable to care due to mental illness, parents incarcerated long-term, parents who have disappeared or cannot be located.
The specific finding depends on state law definitions. Different states may identify different situations as warranting similar findings.
What Is the SIJS Process?
SIJS involves two distinct phases:
Phase 1: State Court Proceedings
A state juvenile court must make specific predicate findings supporting SIJS eligibility. This typically occurs in:
Child dependency or abuse/neglect cases
Guardianship proceedings
Custody cases
Delinquency cases
Probate court proceedings
The court must make findings on each statutory element. Generic statements are insufficient.
Phase 2: USCIS Proceedings
After obtaining the state court order, file Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant with USCIS.
Include the state court order and supporting documentation. USCIS reviews whether the petition meets federal requirements.
What Should the State Court Order Contain?
The state court order must explicitly address each SIJS element:
Court's jurisdiction: Identify that the court has jurisdiction over the child.
Reunification finding: State that reunification with one or both parents is not viable due to specific listed reasons (abuse, neglect, abandonment, or similar state-law basis).
Best interest finding: Explicitly find that returning to the home country is not in the child's best interest.
Name the court: Identify which court issued the order.
Courts should make findings based on evidence presented, not merely based on stipulation or agreement of parties.
What Are the Age Requirements?
Age requirements involve multiple considerations:
At state court filing: Must be under the age of majority for state court jurisdiction (usually 18, sometimes older depending on state).
At USCIS filing: Must be under 21 and unmarried at the time Form I-360 is filed.
Age-out protection: If I-360 is filed before age 21, aging out does not defeat eligibility.
What Happens If Age Out During Process?
Age-out protection preserves SIJS eligibility if I-360 is filed before the 21st birthday.
However, state court jurisdiction usually ends at 18 in most states (some exceptions for extended jurisdiction). The state court order must be obtained while the court has jurisdiction.
Careful timing is essential. Older teens approaching 18 should pursue SIJS proceedings promptly.
How Do You File the SIJS Petition?
File Form I-360 with USCIS along with required supporting documents:
Required documents:
Completed Form I-360
Certified copy of state court order with SIJS findings
Birth certificate or other proof of age
Evidence of identity
Photographs
No filing fee (SIJS petitions are fee-exempt)
File to the USCIS Nebraska Service Center (or current designated location per form instructions).
What Is the SIJS Filing Fee?
There is NO filing fee for Form I-360 filed for SIJS. This fee exemption reflects the protected status of children seeking SIJS.
Fee exemption also extends to other related applications for SIJS children, including:
Biometrics fees
Form I-485 adjustment of status fee
Related applications for SIJS children
This removes financial barriers for vulnerable children seeking protection.
What Happens After I-360 Approval?
After I-360 approval, children can pursue adjustment of status to permanent residence:
File Form I-485: Application to adjust status. SIJS children can file immediately if visa numbers are current.
Visa availability: SIJS falls under EB-4 (special immigrant) category. Country-specific backlogs can apply, particularly for children from certain countries.
Adjustment benefits: Children can adjust status regardless of how they entered the U.S. Unlawful entry does not bar adjustment for SIJS recipients.
What About Visa Number Waits?
Recent backlogs in the EB-4 category affect SIJS children, particularly those from:
Guatemala
Honduras
El Salvador
Mexico (in some periods)
Children may need to wait for visa numbers to become current even after I-360 approval. Children aging out during waits retain protection under SIJS.
Check the current visa bulletin for EB-4 availability by country.
Important Limitations of SIJS
No parent petitioning: SIJS recipients cannot petition for either parent, even the non-abusive parent. This is a permanent limitation.
Age limit for adjustment: Must remain unmarried to complete adjustment of status.
Criminal grounds: Certain crimes can make SIJS recipients ineligible for adjustment or removable after adjustment.
Fraud or misrepresentation: Obtaining SIJS through fraud can result in denial or revocation.
Can SIJS Children Ever Help Their Parents?
SIJS recipients can never petition for either parent, even if circumstances later change.
This rule applies permanently, even after naturalization. SIJS children who become U.S. citizens still cannot file family petitions for their parents.
This is a trade-off. The protection SIJS provides comes with this permanent restriction.
State Court Considerations
Different states have varying procedures for SIJS findings:
Jurisdiction: Determine which state court (family, juvenile, probate) has jurisdiction to make SIJS findings.
Predicate case: There must be an underlying state court proceeding. SIJS findings alone are not a standalone case.
Evidence standards: State courts apply their own evidence standards but must make findings supported by actual evidence.
Best interest analysis: State courts conduct their own best interest analysis based on available evidence.
What If There Is No Underlying State Court Case?
SIJS requires an underlying state court proceeding. Types of proceedings that may support SIJS findings:
Dependency/foster care cases: Children in foster care or under state custody.
Guardianship cases: Family members or others seeking guardianship.
Custody cases: Family court proceedings regarding custody.
Adoption cases: Some adoption proceedings may support SIJS findings.
Probate proceedings: Cases where parents are deceased or incapacitated.
Consult with attorneys experienced in both state family law and SIJS to identify appropriate proceedings.
Challenges and Common Issues
State court reluctance: Some state courts are unfamiliar with SIJS and hesitant to make required findings.
Proof of parental wrongdoing: Gathering evidence of abuse, neglect, or abandonment can be difficult, especially for older events in other countries.
Interstate complications: Children moving between states during proceedings face jurisdictional complications.
Reunification evaluations: Courts must genuinely evaluate whether reunification is viable, not rubber-stamp SIJS findings.
What Happens If Parents Object?
Parents may have standing to object in state court proceedings:
Due process requires notice to parents where possible. Parents may appear, oppose findings, and present their own evidence.
SIJS findings must be supported by evidence even over parental objection.
Courts balance parental rights with child welfare considerations.
