When Noncitizen Minors In The U.S. Need The Protection Of A Juvenile Court
If the unmarried minor under the age of twenty-one (21) or in other circumstances, under the age of eighteen (18), is physically present in the United States and is in need of the protection of the juvenile court due to being abused, abandoned, and/or neglected by one or both parents, he or she may be eligible for Special Immigrant Juvenile Status (SIJS). If the SIJS classification is approved, the minor may also qualify for lawful permanent residency (or obtaining a green card).
In order to qualify for SIJS classification, the minor will need to obtain a valid juvenile court order issued by a state court (i.e. family court, probate court, juvenile dependency court, juvenile delinquency court, or adoption) in the United States determining that the minor are dependent on the court, or in custody of a state agency, or department or an individual or entity appointed by the court, the minor cannot be reunified with one or both of his or her parents due to abuse, abandonment, or neglect, and it is not in his or her best interest to return to his or her country of nationality or country of last residence for him or her or his or her parents. For family court cases, the minor must be under the age of eighteen (18).
Further, SIJS classification provides many benefits, such as waiving several types of inadmissibility which would prevent an immigrant obtaining their lawful permanent residency (i.e. unlawful entry, working without authorization, or being deemed a public charge). Once the minor obtains their SIJS classification, he or she may be able to file for lawful permanent residency subject to the visa availability, and thereafter for U.S. Citizenship. Contact us if you would like us to evaluate your specific circumstances and determine if you are eligible for SIJS classification.
Public Charge Rule
Effective February 24, 2020, the U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) implemented the inadmissibility on public charge grounds rule. This rule applies to immigrants applying for visas or green cards based on family-based petitions as well as nonimmigrants changing or extending their nonimmigrant status. Certain classifications are exempt from this rule, such as asylees, refugees, applicants under NACARA, SIJS, TPS, VAWA, and valid U and T visa status.
According to the public charge rule, the officer will determine whether the applicant in the future is likely to receive public benefits. Public benefits consist of SSI, food stamps, Section 8 Housing, and Medicaid, for instance. However, it is important to note that Emergency Medicaid, school-based services, benefits received by individuals under the age of 21, pregnant women or within 60 days of pregnancy, health insurance under the Affordable Care Act (ACA), WIC, unemployment compensation, and Medicare, amongst others, are not considered public benefits for purposes of the Public Charge rule.
Moreover, under the public charge rule, officers will evaluate various categories specific to the applicant’s circumstances and weigh the positive and negative factors in assessing whether the applicant will likely become a public charge at any time in the future. The categories consist of the applicant’s age, health status, family status, assets and financial status, education and skills, prospective immigration status and expected period of admission, and the affidavit of support provided by the petitioner or a joint sponsor, if applicable. If the positive factors outweigh the negative factors, there is a high likelihood that the applicant will not be deemed a public charge. However, if the negative factors outweigh the positive factors, the applicant may be found inadmissible and there is no waiver. It may also trigger the revocation of the approval of a provisional waiver. Additionally, subject to the officer’s discretion, the applicant may be entitled to post a public charge bond if it appears that he or she is ineligible as a public charge. This major yet controversial change in law has drastically impacted the decision-making process for applications for adjustment of status and for consular processing. Contact us today for further information on how this new change in law can impact your case.
On July 29, 2020, the new DHS rule was enjoined nationwide during the COVID-19 national emergency. The New DOS rule and 2018 FAM guidance related to the public charge rule was enjoined indefinitely. On August 12, 2020, the Second Circuit limited the July 2020 DHS injunction to New York, Connecticut, and Vermont only. There has been no USCIS update since August 12, 2020. For more information about whether the public charge rule applies in your case, please contact our office for the information.
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