Special Immigrant Juvenile Status (SIJS) is a form of humanitarian protection which provides a path to permanent residence for noncitizen children who have been victims of abuse, neglect, abandonment or a similar harm and cannot be reunited with one or both parents because of it. SIJS results in a grant of permanent residence which puts the child on the path to citizenship. SIJS is available to many immigrant children, who can qualify irrespective of how long they have been in the US.

SIJS is unusual in several ways.  First, it is the single instance in federal immigration law that expressly uses the “best interests of the child” standard in its eligibility requirements. Second, it is a hybrid remedy involving state court expertise in making best interest and child welfare determinations on which the federal immigration authorities base the ultimate decision on eligibility for SIJS. The state court’s judicial determination is known as a “predicate order” which is the subject of this resource.

The predicate order is concerned with dependency and not whether the child qualifies for the federal remedy. This is a common misunderstanding by state court judges. The court is being asked to make determinations based exclusively on state law. The state court is not being asked to make a determination about the child’s eligibility for federal immigration status.

This section provides a simple overview of Special Immigrant Juvenile Status, focusing on what is required so that the predicate order will support the approval of the U.S. Citizenship and Immigration Services (USCIS) petition. Citations to publications which discuss these requirements – substantive and procedural – in detail can be found here and throughout this resource center.

The Process

Obtaining permanent residence through SIJS is a multi-step process. The last steps – the USCIS petition and permanent residence application – are complex so there are many issues and much to learn. And policies change. For example, recent policy changes have expanded the benefits available to children with petitions approved by USCIS.

Becoming a permanent resident, begins the child’s journey to citizenship.

While there are some publications and practice advisories in the library that address some aspects of  these parts of the process, they are not discussed in this introduction or in the other sections of the Predicate Order Resource Center.

State Court Order – the predicate order – making SIJS Special Findings

Predicate Order issued – file Form I-360 petition with USCIS

Petition approved – file for lawful permanent residence

Eligibility for SIJS

Threshold requirements

Eligibility for SIJS requires that the child:

Is in the US

Is under 21 years old at the time of filing the petition

Is unmarried at the time the petition is filed until it is adjudicated

Is the subject of a “juvenile court” dependency order(s) that contain(s) special SIJS findings

Obtains consent from the DHS to classification as a special immigrant juvenile

Findings by the Juvenile Court – the Predicate Order

The state juvenile court must make three best interest and child welfare related findings:

(1) The child has been “declared dependent on a juvenile court” or has been “legally committed to or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States;”

(2) The child’s “reunification with [one] or both of the [child’s] parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;” and

(3) It “would not be in the [child’s] best interest to be returned to the [child’s] or parent’s previous country of nationality or last habitual residence.”

Statutes

 INA §101(a)(27)(J): definitions 

INA §245(h): adjustment

TVPRA §235(d)(6): age-out protections

Regulations

8 CFR 204.11, 205.1, 245.1, effective Apr. 7, 2022 

USCIS Guidance

USCIS  Policy Manual Vol. 6, Part J (SIJS); USCIS Guidance 

USCIS Policy Manual Vol. 7, Part F, Ch. 7 (adjustment of status for SIJs)

The regulations at 8 CFR 204.11, 205.1, 245.1, effective Apr. 7, 2022, made some significant changes to the previous ones. A comparison between the old and new regulations is here. If using a resource prepared before 2022, verify information against the new regulations.

Here is a compendium of state laws concerning abuse, neglect, abandonment or a similar basis, and non-viability of reunification.  A more complete discussion with particularized publications can be found at “No Return” Best Interest Finding.

Best Interests of the Child

The best interests of the child standard is applicable in all proceedings designed to promote and  guard the child’s welfare, safety and well-being, including those concerned with care and custody. The factors and analysis used to determine best interests are state-specific and are generally set by statute. The National Immigrant Women’s Advocacy Project (NIWAP) has developed a comprehensive set of tools concerning best interests which include a state-by-state survey of statutes as well as maps and charts analyzing common goals, themes, elements, and factors.

What is a Juvenile Court?

A juvenile court is a court located in the United States that has jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of children. 8 CFR 204.11(a)(2022). The case is filed in the state and county where the child lives.

The title and the type of court that may meet the definition of a juvenile court is state-specific and research is necessary to determine which court(s) can hear a case.  Examples of state courts that may meet the qualifications include  juvenile, family, dependency, orphans, guardianship, probate, and delinquency courts. A listing of different proceedings in which a SIJS predicate order can be issued can be found here. A more detailed discussion of these types of actions including, among others, guardianship, dependency, custody and child support, delinquency and criminal and civil protective orders is here in Chapter 5.

Who is a Child?

Jurisdiction of the juvenile court is established by determining who is considered a child in the state where the child lives. A person who because of age is no longer subject to the jurisdiction of the juvenile court is said to have “aged out” of the system. A child who has aged out can no longer seek a predicate order and thus is precluded from obtaining SIJS status.

Project Lifeline developed a State-by-State Age-Out Database which is a quick reference tool to know when a state considers a person no longer a child and which states have special provisions for making SIJS findings. Ages vary from state to state. And within a state, there may be different ages and requirements, generally and specifically, as applied to cases seeking an SIJS predicate order.

Statutes Providing for SIJS Special Findings

The court findings in the predicate order that mirror the statutory requirements are known as “special findings.” A number of states have passed laws extending the jurisdictional age to 21 for children seeking a predicate order. In most of these states, the enabling legislation contains language requiring that in cases seeking a dependency order to support a SIJS petition, state courts consider and make determinations on each of the predicate order requirements – the special findings. A good example is Maine. Many of these statutes contain other provisions which protect the child. Good examples are Illinois and California. If the state has such a statute, the citation is in the State-by-State Age-Out Database.

The Order

The court’s order must mirror the requirements of the federal law governing SIJS predicate orders detailed above. This means that the child’s age and, if possible, marital status are essential elements. It will include a statement of the court’s jurisdiction citing the state statute, court rule, and/or other authority under which the court is exercising jurisdiction. The order must detail the factual basis for each of its findings. This means detailed findings of fact that set out the harm the child suffered, cite state laws being applied, and discuss the application of state laws to the facts of the case.

The order should also include citations to the relevant state statutes defining children’s best interests.

A comprehensive discussion of what should be included in the predicate order is here.

Practice Pointers

• Find a Mentor. Proof in predicate order cases is frequently complicated. Working with the child client has many challenges requiring the use of trauma-informed lawyering skills. State courts and judges vary greatly in procedures and in attitude. The best practice is to ask for guidance and collaborate with a lawyer who works with predicate orders and understands the applicable state laws, the type of proceeding being brought, and the court and judge handling the case, and what is required in a predicate order so that it will support a federal SIJS determination.
• Learn to use trauma-informed techniques. A trauma-informed approach recognizes that the harms the child experienced have left an emotional and physical imprint  – and that talking about what happened can retraumatize the child. It is imperative to use techniques that promote trust and a feeling of safety and understanding. Best Practices – Trauma-informed Lawyering is needed in every aspect of the relationship and in every communication with the child.
• Learn about the court.  Cases are filed in the county where the child resides. A county may have unique procedural rules generally and/or for SIJS cases specifically. 
• Learn about the judge. Judges can vary greatly in many respects. Even within the same county, judges may have their own rules of court practice and attitudes about immigration. Knowing about the judge is part of being prepared. There are many things you will want to understand. These are just a few examples. Does she have a view about foreign-born children and immigration? Is she experienced with SIJS cases? Will she require the child to testify? Does she allow service by publication? Will she recognize death as abandonment? Does she have a way she prefers that proposed orders be written?
• Stay up to date. Like any area of law, the statutes, rules and policies related to SIJS frequently change. Join the national SIJS listserv – sijs@googlegroup.com. Follow nonprofit groups and communities that post frequent updates and practice advisories, both national and state-specific. Consult the USCIS website, USCIS frequently asked questions and the case law. Talk with your mentor.

The regulations at 8 CFR 204.11, 205.1, 245.1 (2022) made significant changes to the prior regulations.  A comparison between the old and new regulations is here. If using a resource prepared before 2022, verify the information against the new regulations.

The goal of the Predicate Order Resource Center and this page is to provide advocates with easy access to publications and other resources to be used as a starting place for research and further investigation. It is not a substitute for independent thought, research and, if applicable, obtaining legal advice.