Immigrant children, even those who entered the United States illegally, may be eligible to receive a Special Immigrant Juvenile (“SIJ”) status and subsequently apply for a residency (i.e. green card) in the United States.

SIJ status was created by the Congress to provide protection to children who cannot be reunited with the parents in their home country. To qualify for a SIJ status a person must be under 21 years old and unmarried. It must be established by a state family court that the child cannot be reunited with one or both of his/her parents because of abandonment, neglect or abuse by that parent or parents. Finally, it must be shown that it would not be in the child’s best interest to be returned to his or her home country.

The SIJ process is an interplay of federal and state laws, and state family courts have a very important role making factual findings, which are prerequisite to subsequent application for a SIJ status with the USCIS.

Proceedings in a family court are governed by the laws and rules of the respective state, and until very recently New Jersey was rightfully considered one of the most difficult places to apply for a SIJ status. However, the situation changed for better after the opinion issued last year by the New Jersey Supreme Court in the matter of H.S.P. v. J.K., 223 N.J. 196 (2015).

First, the Court made it clear that even if a child has one parent present (or can be reunited with one parent), he or she may still qualify for a SIJ status as long as reunification with the other parent is not feasible. For example, a child living in the U.S. with her mother may still be eligible to apply for a SIJ status as long as she was abandoned by, and thus cannot be reunited with, her father.

Second, the law became clearer with respect to those children who attained the age of majority under the state law (18 in New Jersey), but who are still under the age of 21 and hence considered children under the federal immigration law. Even if a child has already turned 18, he or she may still be eligible to apply for a SIJ status as long as the child is under 21, unmarried, and otherwise unemancipated.

During the past several years there was a surge in the number of children migrating to the United States from the Central American countries, escaping uncontrolled violence and crime in their home countries. Many of those children have entered the United States illegally and found themselves detained by immigration authorities and having to appear in court for deportation proceedings.

Depending on the unique facts and circumstances of each case, a SIJ status may be a viable alternative to children without legal immigrant status in the United States, including those who entered the country illegally. Therefore, it is very important to consult with an experienced immigration attorney to determine what you or your loved ones can do in that situation.

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