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The Department of Homeland Security (DHS) proposes to amend its regulations governing the Special Immigrant Juvenile (SIJ) classification and related applications for adjustment of status to permanent resident. The Secretary may grant SIJ classification to aliens whose reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. This proposed rule would require a petitioner to be under the age of 21 only at the time of filing for SIJ classification. This proposed rule would require that juvenile court dependency be in effect at the time of filing for SIJ classification and continue through the time of adjudication unless the age of the juvenile prevents such continued dependency. Aliens granted SIJ classification are eligible immediately to apply for adjustment of status to that of permanent resident. The Department received comments on the proposed rule in 2011 and intends to issue a final rule in the coming year.

Statement of Need:

SIJ classification is available to eligible alien children who: (1) are present in the United States; (2) have been declared dependent on a juvenile court or an individual or entity appointed by a State or juvenile court; (3) cannot reunify with one or both of the alien's parents due to abuse, abandonment, neglect, or a similar basis under State law; (4) it is not in the best interest to be returned to the home country. DHS must also consent to the grant of SIJ classification. This rule would address the eligibility requirements that must be met for SIJ classification and related adjustment of status, implement statutory amendments to these requirements, and provide procedural and evidentiary guidance to assist in the petition process.

Summary of the Legal Basis:

Congress established the SIJ classification in the Immigration Act of 1990 (IMMACT). The 1998 Appropriations Act amended the SIJ classification by linking eligibility to aliens declared dependent on a juvenile court due to abuse, abandonment, or neglect and creating consent functions. The Trafficking Victims Protection Reauthorization Act of 2008 made many changes to the SIJ classification including: (1) creating a requirement that the alien's reunification with one or both parents not be viable due to abuse, abandonment, neglect, or a similar basis under State law; (2) expanding the aliens who may be eligible to include those placed by a juvenile court with an individual or entity; (3) modifying the consent functions; (4) providing age-out protection; and (5) creating a timeframe for adjudications.

Alternatives:

To provide victims with immigration benefits and services, keeping in mind the humanitarian purpose of the SIJ classification and the vulnerable nature of alien children who have been abused, abandoned or neglected, DHS is considering and using suggestions from stakeholders in developing this regulation. These suggestions came in the form of public comment from the 2011 proposed rule.

Anticipated Costs and Benefits:

In the 2011 proposed rule, DHS estimated there would be no additional regulatory compliance costs for petitioning individuals or any program costs for the government as a result of the proposed amendments. Qualitatively, DHS estimated that the proposed rule would codify the practices and procedures currently implemented via internal policy directives issued by USCIS, thereby establishing clear guidance for petitioners. DHS is currently in the process of updating our final cost and benefit estimates.

Risks:

The failure to promulgate a final rule in this area presents significant risk of further inconsistency and confusion in the law. The Government's interests in fair, efficient, and consistent adjudications would be compromised.