The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Relatives and kin of children often play a critical role when a family is involved in a child welfare case, whether as a placement resource for the child, supervising visitation, or otherwise supporting the child and parent. As placement resources, relatives can provide a setting familiar to a child experiencing the trauma or disruption of removal from the home and can preserve existing positive relationships with the child (and, ideally, the parent).
Additionally, relative caregivers may create stability and comfort for the child by maintaining shared cultural practices and speaking the child’s primary language. Immigrant relatives, in particular, can support this cultural continuity for children, in addition to other aspects of a safe and stable placement. But immigrant caregivers without legal status in the U.S. —that is, “undocumented” immigrants —face unique challenges to caring for children who have been removed from their parents’ care.
These challenges may impact many families. In 2015, 30% of children in foster care were placed in relative foster homes.1 That same year, almost 18 million children, more than a quarter of the demographic, had at least one foreign-born parent.2 While data on the number of immigrant children in foster care is limited, it is clear that a substantial portion of the population may be impacted by laws and policies that directly or indirectly affect immigrant caregivers’ ability to participate with the child welfare system.
Attorneys, caseworkers, and other advocates can help overcome these obstacles and eliminate barriers. In addition to discussing the legal implications of immigration status on foster placements, this article provides promising practices and other tools for those who work closely with immigrant caregivers in the child welfare system.
Placing Children with Immigrant Families
Both relative and nonrelative foster parents seeking to care for children in the custody of child welfare agencies must meet eligibility requirements to become licensed providers. While federal law provides some guidance, licensing standards are largely determined by state law, and thus, may vary significantly across jurisdictions.
Guided by federal law, most states prioritize placing foster children with relatives or fictive kin over nonrelatives. To facilitate these placements, most of these states offer a modified approval process for kinship caregivers, such as unlicensed provider options, or waivers of nonsafety related licensing standards.3
However, in many cases, failure to obtain full licensure may disadvantage caregivers by, for example, precluding receipt of full foster care maintenance payments. Understanding how federal and state laws regulate foster placements with immigrant caregivers helps guide advocacy when working with immigrant caregivers.
Federal Law and Policy Relating to Immigrant Caregivers
Federal law recognizes the critical role relatives and kin can play in child welfare cases, and encourages them to participate. For example, under the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act), child welfare agencies that receive federal funding must notify all adult relatives when a child is removed from care of the parent within 30 days of the removal,4 exercising due diligence to identify and locate all adult relatives of the child.5 The law does not provide an exception to this requirement for relatives who live outside the United States or who are otherwise not U.S. citizens.
In addition to notification requirements, the Fostering Connections Act also prioritizes placing children with relative caregivers.6 This priority advances multiple important policies, including increasing stability and permanency for children. Nothing in federal law precludes placing foster children with relatives who are not U.S. citizens, regardless of whether they have a documented or undocumented immigration status. And undocumented caregivers can receive federally-reimbursable foster care maintenance payments if the child is eligible under Title IV-E of the Social Security Act.7
State Foster Care Licensing Standards
Although federal law does not preclude placing foster children with noncitizen kinship caregivers, some states have implemented standards that create direct or indirect barriers to licensure for immigrant relatives.
Explicit Citizenship or Immigration Foster Licensing Requirements
Twenty states have explicit foster licensing standards that require U.S. citizenship or some form of documented immigration status.8 The phrasing, scope, and context of these requirements varies from state to state. Most of these states require either U.S. citizenship or any form of documented immigration status. Arizona accepts all applicants who are “lawfully present,” but it requires that those with “temporary authorization to be present in the United States . . . provide documentation indicating that the authorization is valid for a minimum of one year or that the applicant has already taken steps to obtain authorization to remain for at least one year.”9 Massachusetts narrows its standard to include only U.S. citizens or immigrants with “legal permanent resident status, asylum, refugee, or other indefinite legal status.” Georgia, Maryland, New Mexico, North Carolina, and Tennessee require either citizenship or lawful permanent resident status (i.e., a “green card”), which is a specific form of immigration status.
Other Potential Barriers to Full Foster Licensure
In some states, while there are no explicit citizenship and immigration status licensing standards, there are other requirements that may create challenges for immigrant kinship caregivers, especially those with undocumented status.
Background checks. All states require that caregivers, whether licensed or unlicensed, undergo background checks. In addition to concerns by undocumented immigrants about interacting with law enforcement and other government entities, background checks typically require providing some form of government-issued identification, such as a state-issued driver’s license or a social security number. For undocumented immigrants, these accepted forms of identification are not always available. At least two states have established official methods of processing background checks that accommodate undocumented immigrants.10 However, most states are silent on the issue.
Another element of background checks that may pose challenges to undocumented potential caregivers is fingerprinting. Though fingerprinting for foster care placement purposes was rarely an obstacle to otherwise eligible caregivers in recent years, the Trump Administration’s interest in information-sharing among agencies for purposes of immigration enforcement heightens the risk that identifying information about undocumented kinship caregivers could reach the Department of Homeland Security.
Language, residency, home study, and education requirements. Other foster licensing standards that may create barriers to or prevent licensing immigrant kinship caregivers include: (1) specific language or communication requirements;11 (2) state residency requirements;12 (3) requests for immigration-related information on foster care licensing applications or during home studies;13 and (4) education-related standards that may require academic credentials obtained in the United States.14 While none of these standards are specific to immigrant caregivers, these regulations and policies may create a chilling effect or extra hurdles for immigrant caregivers. These standards may also indicate that, in practice, the state does not license undocumented caregivers.
Engaging Immigrant Families
Aside from specific legal requirements when placing foster children with their immigrant relatives or kin, there are some promising practices that child welfare agencies, courts, and others who work with caregivers may adopt. When implemented, these policies and practices may increase immigrant relative involvement with the child welfare agency and the number of kinship placements. Stakeholders should be aware of the following recommended practices and opportunities for advocacy.
Making Child Welfare Agencies More Accessible
Child welfare agencies and other state entities that provide services to immigrant caregivers should take steps to ensure accessibility for non-U.S. citizens. Accessibility in this context includes both access to the standard information and services available to all foster families and specific services for immigrant families. In a 2015 Information Memorandum, the U.S. Department of Health and Human Services’ (HHS) Children’s Bureau provides, among other guidance, a list of best practices for child welfare agencies to adopt.15 While the Information Memorandum focuses on working with immigrant parents, many of the suggestions can also improve collaboration with relative caregivers. The suggestions include:
Use partnerships with immigrant-serving organizations to recruit foster and kinship care providers, remove systemic barriers that prevent immigrant relatives from becoming kinship caregivers, and promote foster family resources;
- Translate written materials and use interpreters;
- Use culturally competent assessments, engagement, and intervention;
- Engage community/ethnic-based organizations to coordinate services for families and children that cannot be met through usual channels; and
- Train caseworkers on challenges in immigration and acculturation, culturally and linguistically appropriate services, how immigration status affects families, children and youth, access to services and benefits, and the complexities of immigration enforcement.16
Using Foreign Consulates to Assist Agencies and Courts
State and local child welfare agencies and courts can also improve engagement with immigrant families by partnering with foreign consulates. Generally, a country’s consulate offers help to citizens of that country who are traveling or living in the U.S. when those individuals need help with the U.S. legal system (and in other circumstances). Many states and local jurisdictions have entered into Memoranda of Understanding (MOUs) with foreign consulates (most commonly with that of Mexico). The MOUs are formal agreements designed to promote cooperation between the child welfare agency and consulate on areas including locating and providing notice to parents, engaging parents in their dependency case, facilitating service delivery, and more. Many MOUs specify the responsibilities and roles of the consulate and child welfare agency (or court, in a handful of MOUs) in a dependency matter.17
Such agreements can improve compliance with the 1963 Vienna Convention on Consular Relations, which requires the United States to notify a consulate when a citizen of a participating nation is in the government’s custody, including children in child welfare agency custody. Additionally, they can establish cooperation in other aspects of child welfare cases, such as locating potential kinship caregivers in the U.S. or abroad, bridging language and other communication barriers, conducting home studies for kinship placements outside the United States, and satisfying the federal requirement to notify foster children’s relatives.
One study by the HHS Office of the Assistant Secretary for Planning and Evaluation surveyed 11 Memoranda of Understanding (MOUs) between child welfare agencies with foreign consulates.18 The participating state agencies reported that cases in which the consulates are involved from early in the process consistently run more smoothly and result in better representation and outcomes for families.19 While negotiating and implementing these agreements required additional time and resources, the agencies interviewed said that once the MOUs were institutionalized, they required less state involvement.20
Understand the Concerns of Immigrant Caregivers
Immigrant families involved in the child welfare system may have distinct concerns. Immigrants with legal status in the U.S. may be reluctant to proactively engage with federal, state, or local government entities based on past harmful experiences and mistrust of governments in their native countries. Undocumented immigrants may hesitate to interact with government agencies and the courts for fear of detention, deportation, or discrimination. As a result of the federal government’s increased focus on immigration enforcement and renewed efforts to engage state and local law enforcement more in those efforts, noncitizens may also be experiencing increased anxiety and uncertainty. Additionally, states and local jurisdictions, including social services agencies, may feel pressure either to take a more aggressive approach towards certain immigrants or to share identifying information among agencies as a result of the federal government’s push for greater collaboration from states on immigration enforcement. For these and many reasons, immigrant relatives may hesitate to come forward to work with any government agency, including a child welfare agency or court.
Attorneys, social workers, and others should seek to understand the concerns of immigrant caregivers with whom they work. As a first step, advocates should determine the immigration status of all kinship care providers. When possible, it is best if this inquiry is made by someone who can maintain confidentiality or assure the caregiver that no action will be taken to involve federal immigration officials. After determining immigration status, advocates should discuss the caregiver’s immigration-related concerns, then take proactive measures to address them. At all times, advocates should be frank with immigrant caregivers about possible risks and other challenges they may face when interacting with the foster care system. This conversation should be ongoing and revisited regularly.
Find and Use Alternative Paths to Licensure
Despite direct and indirect barriers to full foster licensure, there are measures immigrant kinship caregivers may take to become fully licensed:
- Kin exemptions. Of the 20 states with explicit immigration requirements, Massachusetts and Oregon explicitly exempt kin from the immigration status licensing standard, thereby allowing eligible undocumented relatives to obtain full licensure.21 Other states could include similar kin exemptions in their laws or policies.
- Waivers and variances. In states that have immigration-related standards and those with other requirements that create indirect barriers to full licensure for immigrant caregivers, providers may take advantage of waiver and variance provisions, where available. Federal law permits waiver of nonsafety related standards for kinship caregivers,22 and most states have adopted procedures for granting waivers or variances. Therefore, while requirements such as those for background checks generally cannot be waived, there are strong arguments that immigration and related standards are not safety-related and therefore may be set aside case-by-case.
- Alternative sources of information to evaluate caregivers. When standard checks through social security numbers or state-issued forms of identification are not available, agencies can explore other sources of background information. For example, caseworkers can investigate the caregiver’s employment history (including checking employment and other references), community engagement, and length of residence in the local area and state; assess the safety and stability of the home; consider the relationship between the caregiver and child and the child’s family; and explore any concerns voiced about the caregiver taking the child out of the U.S. or about other issues.
- Alternative approval procedures. Alternatively, immigrant caregivers and advocates may pursue alternative approval procedures, such as those designed specifically for kinship providers.
- Court orders for placement with specific immigrant caregiver. Attorneys for the child, parent, or even agency have the option of advocating for placement with a specific kinship caregiver in court and seeking an order to that effect from the judge presiding over the dependency case. The attorney can provide appropriate evidence of, for example, the child’s relationship with the caregiver, the caregiver’s length of time and involvement in the community, details about employment and household stability, and more.
In states where the foster licensing standards are silent about the impact of immigration status, relative caregivers and those who work with them should first identify any unofficial, practice-based barriers to full licensure for immigrants. These may directly or indirectly relate to immigration status. For example, an indirect impact may come from background check procedures that request U.S. government-issued IDs or social security numbers. In such cases, undocumented relatives and advocates should inquire whether a foreign passport or other ID may be substituted or if a name-only background check could be run.
At least two states and New York City have laws and policies that ensure immigration status does not prevent kinship foster placements.
- The most comprehensive is California, which passed The Reuniting Immigrant Families Act in 2012.23 This statute provides that children in foster care may be placed with an approved relative, regardless of that relative’s immigration status.24 The law also permits relative caregivers to use identification from a foreign consulate or a foreign passport for the purposes of running background checks.25
- Indiana states in the Department of Child Services’ Child Welfare Manual that, “Undocumented aliens may be considered as relative placements,”26 and provide alternative procedures for running background checks for both licensed27 and unlicensed28 caregivers.
- New York City’s Immigration and Language Guidelines for Child Welfare Staff states, “Pursuant to Executive Order No. 41, signed by Mayor Bloomberg on September 17, 2003, [the Administration for Children’s Services] shall not inquire about a person’s immigration status, among other things, unless that inquiry is needed to determine program, service or benefit eligibility or to provide City services.”29 The city’s guidelines further provide, “Undocumented relatives can be considered as a resource for children.”30
Advocate for Legislative and Administrative Policy Changes
Advocates should also support changes to state law and policy that benefit immigrant caregivers. Action may take place at both the legislative and administrative level. Ideally, states and agencies should be encouraged to adopt measures such as California’s Reuniting Immigrant Families Act, discussed above, which takes a proactive approach to ensuring full foster parent licensure of kinship caregivers with an undocumented immigration status.31
In states where similar legislation is politically infeasible, other measures may be taken. For example, in states with explicit immigration-related foster licensing standards, the provisions are set forth in either administrative code or the agency’s policy manuals. Advocates could lobby at the administrative level to remove those requirements, which may be easier than seeking legislative action. Agency action would preferably take place through regulations, but where that is not possible, agencies could revise their policy manuals to permit licensure of documented and undocumented immigrant caregivers, such as those in Indiana and New York City. Alternatively, lawmakers or agencies could establish kinship-specific, immigration-standard waiver provisions, such as those in Massachusetts and Oregon.
Conclusion
To allow immigrant children and U.S.-born children of immigrant parents to benefit from the advantages of safe and appropriate placement with relatives, child welfare practitioners should review foster parent certification requirements in their jurisdiction. Identify any barriers uniquely facing potential immigrant caregivers – especially those who are undocumented – by being attuned to how circumstances and policies at the local, state, and national level affect immigrant adults and children, and by partnering with and gaining the perspective of immigrant parents, foster parents, and/or service providers outside the child welfare system that are trusted by the local immigrant community. After identifying the challenges to kinship caregiving by immigrants, practitioners can explore and implement policies to overcome those barriers,
Cristina Ritchie Cooper, JD, is senior counsel with the ABA Center on Children and the Law and director of the Center’s Immigration Project.
Elizabeth Christy, JD, served as a legal fellow with the ABA Center on Children and the Law in spring 2017. She is joining the firm Asbey, Watkins & Deisel in Flagstaff, AZ.
Endnotes
1. U.S. Department of Health and Human Services, Child Welfare Information Gateway. Foster Care Statistics 2015.
2. Migration Policy Institute. Children in U.S. Immigrant Families.
3. Federal law permits waiver of nonsafety licensing standards for relative foster parents on a case-by-case basis. 42 U.S.C. § 671(a)(10).
4. 42 U.S.C. § 671(a)(29).
5. Ibid.
6. 42 U.S.C. § 671(a)(19).
7. ACF Child Welfare Policy Manual. 8.4B Title IV-E, General IV-E Requirements, Aliens/Immigrants. Note that the immigration status of the caregiver may impact eligibility for federal reimbursement of foster care maintenance or adoption payments if the child is a “qualified alien child,” under certain circumstances.
8. Ariz. Admin. Code § 21-6-301; 12 Colo. Code Reg. 2509-6:7.500.31(G); Ga. Div. of Fam. and Children Servs., Child Welfare Policy Manual § 14.11 (2017); see also Ga. Comp. R. & Regs. 290-2-5-.05; Haw. Dep’t. of Human Servs., Child Welfare Services Procedures Manual, Part IV, § 1.2.1; Iowa Dep’t of Human Servs., Foster Family Home Licensing 14 (2010); 922 Ky. Admin. Regs. 1:350 § 2(2); La. Admin. Code Tit. 67, § 7313(B); Md. Code Regs. 07.02.25.04.B; 110 Mass Code Regs. 7.100(4)(i), 7.104(6); Mich. Admin. Code Rs. 400.9201, 400.9202; Miss. Div. of Fam. & Children’s Servs, Miss. DFCS Policy § F(II)(C)(1)(a) (2013); see also Miss. Code R. §§ 18-6:1.D-V(G)(1)(e), 18-7:1.XIV; Mo. Code Regs. Tit. 13, § 35-60.030(2); N.J. Admin. Code § 10:122C-5.3; N.M. Code R. § 8.26.4.8; N.C. Dep't of Health and Hum. Servs., Foster Home Licensing Manual § VIII.I (2014); Okla. Admin. Code § 340:75-7-12(b); Or. Admin. R. 413-200-0306; Tenn. Dep’t of Children’s Servs., Admin. Policies & Procedures § 16.4(A)(1)(c); Utah Admin. Code R. 501-12-5(1)(d); Va. Dep't of Social Servs., Child and Fam. Servs. Manual § D, 1.5.1.8 (2013).
9. Ariz. Admin. Code § 21-6-301(A)(2)(b).
10. Cal. Welf & Inst. Code § 309(d); Ind. Dep’t of Child Servs., Child Welfare Policies § 13.9 (relating to licensed placements); Ind. Dep’t of Child Servs., Child Welfare Manual § 13.5 (2013)(relating to unlicensed placements); New York City Admin. for Children’s Servs. Immigration and Language Guidelines for Child Welfare Staff, 2d ed., 2004.
11. Ark. Code R. § 016.15.15-5.0; Fla. Admin. Code R. 65C-13.030; N.H. Code Admin. R. He-C 6446.04(b)(4); Ohio Admin. Code 5101:2-7-02; 40 Tex. Admin. Code § 749-2447(21); see also Ala. Admin. Code R. 660-5-29.02(1)(c)(1)(i).
12. 10 148 Me. Code R. 16 § 2(B); N.H. Code Admin. R. He-C 6446.04(b)(1).
13. AK Dep’t. of Health and Social Services, Application Form for Foster Care License.; Nev. Dep’t of Child & Fam. Servs. Caregiver Application; 40 Tex. Admin. Code § 749-2447(5)(B).
14. See, e.g., N.H. Code Admin. R. He-C 6446.04(b)(5); 40 Tex. Admin. Code § 749-2447(2).
15. Children’s Bureau, U.S. Dep’t of Health and Human Servs. Information Memorandum: Immigration Enforcement and Child Welfare; Case Planning; Foster Care, Feb. 20, 2015.
16. Ibid., 6.
17. For examples of consulate-agency Memoranda of Understanding, see http://cimmcw.org/state-specific-resources/ and http://www.f2f.ca.gov/sampleMOUs.htm.
18. Office of the Asst. Sec. for Planning and Evaluation, U.S. Dep’t of Health and Human Servs. Emerging Child Welfare Practice Regarding Immigrant Children in Foster Care: Collaborations with Foreign Consulates, December 2013 <>
19. Ibid., 8.
20. Ibid.
21. 110 Mass. Code. Regs. 7.105A; Or. Admin. R. 413-200-0306(1).
22. 42 U.S.C. § 671(a)(10).
23. Cal. Sen. Bill No. 1064 (2012).
24. Cal. Welf. & Inst. Code § 361.2(e)(2). Immigration status is also precluded from serving as a sole disqualifying factor in private child custody and related matters.
25. Cal. Welf. & Inst. Code § 309(d); see also Cal. Welf. & Inst. Code § 361.4(b)(2).
26. Ind. Dep’t of Child Servs. Child Welfare Policies, ch. 12, § 1 (2012).
27. Ibid. ch. 13, § 9.
28. Ibid. ch. 13, § 5.
29. New York City Admin. for Children’s Servs. Immigration and Language Guidelines for Child Welfare Staff, 2d ed., 2004, 1.
30. Ibid., 7.
31. Cal. Sen. Bill No. 1064 (2012).