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March 13, 2022

Deferred Action and Employment Authorization for Special Immigrant Juveniles: More Than a Mere Policy Change for Survivors of Parental Abuse, Abandonment, and Neglect

Youth with SIJS status who are in removal proceedings can avoid being removed and qualify for work authorization

Youth with SIJS status who are in removal proceedings can avoid being removed and qualify for work authorization

On March 7, 2022, the U.S. Citizenship and Immigration Services (USCIS) announced that the agency will consider deferred action and related employment authorization (or work permits) for noncitizens with approved Special Immigrant Juvenile Status (SIJS) petitions, effective May 6, 2022. This means that youth with SIJS status who are in removal proceedings can avoid being removed and qualify for work authorization. This is wonderful news and a long-fought win for immigration advocates and immigrant youth.  

When I first heard the news, I instantly pictured Daysi,* a former client who was denied access to an education by her parents in her home country and forced to work in unsafe conditions to support her family. When Daysi came to the United States she lived with a relative, Gladis,* who immediately enrolled her in school. At school, Daysi excelled academically, and she hoped to attend college. However, Daysi and Gladis were unable to afford tuition, even after Daysi won a prestigious scholarship, because the larger scholarships required a social security number to apply. Even though Daysi had an approved Special Immigrant Juvenile Status (SIJS) petition, she was stuck in the backlog and ineligible for a social security number. Daysi’s dreams were put on hold after she had come so close to achieving them. 

SIJS is an immigration visa intended to help noncitizen children who have been mistreated by one or both parents. To be eligible for SIJS, an individual must be under age 21 on the date the Form I-360 is filed, be unmarried, be physically present in the United States, possess a valid state court order that includes specific language, and be eligible for USCIS consent.   

SIJS is a three-part process. The first phase occurs at the state-court level. Typical avenues into state court include custody cases, delinquency proceedings, and foster care plans. To qualify for SIJS, the noncitizen must obtain a state court order with specific language about parental reunification (e.g. the child is unable to reunify with one or both parents due to abuse, abandonment, neglect, or a similar basis under state law), and a best interest determination (e.g. it is not in the child’s best interest to be returned to the country of nationality or last habitual residence of the child or their parents). The second phase occurs with USCIS, where the noncitizen uses the state court order to petition for SIJS, using the Form I-360. The third phase occurs with USCIS or in immigration court, where the noncitizen with an approved SIJS petition applies for lawful permanent residency. Individuals from certain countries may be eligible to apply for parts two and three simultaneously (a process known as a “one-step”).  

Compared to other forms of immigration relief, SIJS often leads to permanent status (as opposed to DACA, for example), and is often much less traumatic for the youth involved (as opposed to asylum interviews). However, due to the backlog between parts two and three, individuals with approved SIJS petitions from El Salvador, Guatemala, Honduras, and Mexico typically wait years before a visa becomes available that would allow them to apply for their green card. The backlog is unpredictable and is centered around special immigrant juveniles being subject to the Visa Bulletin - specifically couched in the Employment Fourth Preference category. Every year this backlog continues to grow, and the wait becomes longer. This backlog not only delays their ability to get a green card, but also the start of the five years of permanent residency to apply for U.S. Citizenship. 

Prior to this policy change, individuals with approved SIJS petitions, but for whom no visa was available, were not eligible for work authorization and had no deferred action, even though SIJS is only available for youth present in the United States. That means for youth who were in removal proceedings, they could be ordered removed while waiting for a visa to become available as there was not an actual change in status to protect them. During my years working as a nonprofit immigration attorney, there were numerous reports of immigration judges ordering children with approved SIJS petitions removed from the United States. Some advocates, including myself and many colleagues, tried to creatively close the gap left by the backlog, such as by arguing that the SIJS grant should be considered parole (an eligible category for a work permit), but these claims were unsuccessful and denied by USCIS. 

As an immigration attorney, most of my clients were SIJS-eligible youth. I used to tell my clients that for SIJS, the first phase was the hardest part. Then, several unfavorable decisions came down and things changed. My clients had already been so brave and trusting to share their stories with me and the family court. I felt helpless as an attorney and as an advocate when I had to return to those clients and tell them that the SIJS we fought so hard for might not be enough to keep them in the United States. Now, with this USCIS change in policy, special immigrant juveniles are eligible for work permits and deferred action while they wait for a visa to become available to obtain a green card. It is not hyperbolic to say this is lifechanging for the youth who have patiently waited years with no ability to financially contribute to their families, obtain a social security number, and oftentimes have been unable to obtain a driver’s license and higher education benefits. 

This news allows me to reflect on the incredible children, youth, and families I worked with on SIJS cases and rejoice in the opportunities that are ahead of them. I think of my one client, Laura,* who was abused and abandoned by her father, diligently calling me every six months to politely ask Sra. Abogada (Mrs. Attorney) if she could please apply to get a driver’s license like the rest of her classmates? Or my client, Emilio,* who was abandoned by his father, neglected by his mother, and came to live with a relative, Luis,* in the United States. One day Emilio shared that he hoped to become a chef and when I asked him why, he told me because that’s what Luis does for work, and he wants to be just like him. 

Ideally, Congress would end the SIJS backlog once and for all by eliminating the visa availability requirement for special immigrant juveniles and making green cards immediately available to these young people, putting them on a path to citizenship. However, today we can celebrate the policy change for the vulnerable children and youths who were abused, abandoned, or neglected by one or both parents and appreciate that the change makes their lives a little easier. 

* Names have been changed 

About the Author: 

Emily McCabe (she/her/ella) is a Senior Staff Attorney for the Family Group Legal Orientation Program in the American Bar Association’s Commission on Immigration. Prior to being at COI, Emily worked for five years as an immigration attorney at Northern Virginia Family Service, representing mostly unaccompanied minors, asylum-seekers, and survivors of trafficking and criminal activity. In law school, Emily participated in the International Human Rights Law Clinic and volunteered for a week with the American Immigration Lawyers Association Pro Bono Project at the Artesia Family Detention Center, where she conducted consults, filed motions, and represented women and their children in bond hearings and credible fear interviews.