If you are an undocumented parent or guardian concerned about your child’s future in the United States, you may be wondering: Can guardianship provide legal status for an undocumented child? The answer is nuanced—while guardianship alone does not automatically grant legal status, it can be a crucial step toward obtaining lawful permanent residence through a process called Special Immigrant Juvenile Status (SIJS).
What Is Special Immigrant Juvenile Status (SIJS)?
SIJS is a unique immigration benefit for undocumented children in the U.S. who have been abused, neglected, or abandoned by one or both parents. Congress created SIJS to provide vulnerable children a path to lawful permanent residence (a green card) when returning to their home country is not in their best interest
Can Guardianship Provide Legal Status for an Undocumented Child?
Guardianship, by itself, does not confer immigration status. However, it is often a necessary legal step for children seeking SIJS. A state juvenile court must issue an order placing the child in the custody of a guardian (not a parent) and make specific findings about abuse, neglect, or abandonment. This court order is essential for SIJS eligibility and is submitted as part of the immigration process
Special Immigrant Juvenile Status Eligibility Requirements
To qualify for SIJS, a child must meet several requirements:
- Be under 21 years old at the time of filing
- Be unmarried
- Be declared dependent on a juvenile court or placed in the custody of a state agency, guardian, or other court-appointed individual
- The court must find that reunification with one or both parents is not viable due to abuse, neglect, or abandonment
- The court must determine that it is not in the child’s best interest to return to their home country
The court’s findings are critical, but the court itself does not grant immigration status—U.S. Citizenship and Immigration Services (USCIS) makes the final decision
How to Get Lawful Permanent Residence Through SIJS
- Obtain a Court Order:
Begin by petitioning for guardianship in the state juvenile court. The court must issue an order with all required SIJS findings. - File Form I-360 for Special Immigrant Juvenile Status:
With the court order, the child (with help from a guardian or attorney) files Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with USCIS. - Wait for SIJS Approval:
If USCIS approves the SIJS petition and a visa is available, the child can apply for adjustment of status (Form I-485) to become a lawful permanent resident (green card holder). - Additional Steps:
If the child is close to turning 21, it is critical to file before their birthday to preserve eligibility. Some children may face wait times for a visa number, depending on their country of origin, but SIJS status is generally preserved if the petition was filed in time
Filing Form I-360 for Special Immigrant Juvenile Status
Form I-360 is the official petition for Special Immigrant Juvenile Status (SIJS). It must be accompanied by the state court order and supporting documentation. Because the process can be complex and carries risks, it is strongly recommended that you consult an immigration attorney before filing.
Conclusion
Guardianship does not directly provide legal status for an undocumented child, but it is often a vital part of the process for obtaining Special Immigrant Juvenile Status. With the right court order and legal guidance, SIJS can offer a path to lawful permanent residence and a more secure future in the United States.
