Practice Alert: Arguments for Using the SIJS-based Adjustment Provision to Adjust Based on a Different Petition

From the Introduction:

“Special Immigrant Juvenile Status (SIJS) is a humanitarian immigration protection that provides a pathway to lawful permanent residence for noncitizen children up to the age of 21 years who have been abused, neglected, or abandoned by their parent(s), and where a state juvenile court has determined that it is not in the child’s best interest to be returned to their country of origin. A child who receives SIJS can apply for lawful permanent residence once a visa is available and they meet other eligibility requirements. Visas for Special Immigrant Juveniles come from the employment-based fourth preference (EB-4) category by statute, pursuant to which no more than 7.1 percent of the worldwide level of employment-based visas may be allocated to all categories of “special immigrants,” which includes but is not limited to SIJS youth.4 Since 2016, there has been more demand for EB-4 visas than yearly visas available, which has led to a growing backlog of available EB-4 visas. Because of this visa backlog, SIJS youth must wait years before a visa is available for them to seek SIJS-based lawful permanent residence. However, some youth with approved SIJS may have a non-SIJS-based path to lawful permanent residence, such as through a family-based immigration petition. Most SIJS youth, however, did not enter the United States after having been “inspected and admitted or paroled” as is generally required to
adjust status.

There is a largely un-tested legal argument that young people with approved SIJS petitions can use the SIJS-specific adjustment provisions at INA § 245(h) to satisfy the “inspected and admitted or paroled” requirement that applies to many other forms of adjustment. Using INA § 245(h) to allow an SIJS youth to pursue adjustment of status with a non-SIJS petition requires that immigration adjudicators accept a “juvenile-based” reading of the SIJS-specific adjustment provision—similar to the noncitizen-based reading of INA § 245(i)—allowing the youth with SIJS to use that provision even if they are not seeking adjustment based on their approved SIJS petition but rather using some other non-SIJS immigrant petition. This practice alert gives a background on SIJS and adjustment of status under INA § 245(h), provides legal arguments for a “juvenile-based” reading, discusses potential roadblocks to successfully advancing these arguments, and provides tips for advising clients about this approach.”