For a child to obtain SIJS, a U.S. state juvenile court or State court (such as a probate court that awards guardianship) must:
- Make the child dependent on the court (or place the child under the legal custody of a state agency or other individual appointed by the state or individual appointed by the state); and
- Declare that the child cannot be reunited with one or both of his or her parents due to abuse, abandonment or neglect; and
- Find that it is not in the best interests of the child to be returned to his country of citizenship.
From a timing standpoint, the SIJS application with USCIS can be filled concurrently with the green card application, granting the child a work permit (a way to a state ID and social security card) within 3 months on average while the case is pending with CIS.Immigration based on adoption would take much longer and in some cases would require the adopting U.S. citizen(s) to travel to the foreign country and stay there for some time and finalize an adoption abroad. There is also a physical custody requirement of two years with the adopting parents to formalize the adoption for immigration purposes. Another difficult issue has been when to permit the biological mother of a child born out of wedlock to release her child for foreign adoption without the consent of the biological father, if the mother cannot provide proper care. This is difficult because the father could be out of the child’s life or worse, be unwilling to consent.
Another benefit of SIJS is that the court can retain jurisdiction over the child even past the age of 18 whereas if a couple adopts a child for immigration purposes, the adoption must be legally final by the age of 16. For SIJS to be successful, it is advisable to work with both a probate or juvenile court attorney and an immigration attorney who can work together on the case.
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