In the seven short months since its start in August 2012, the Obama administration's Deferred Action for Childhood Arrivals (DACA) program has benefited nearly 250,000 individuals. DACA provides qualifying individuals without legal immigration status the ability to work legally, obtain a driver's license, and come out of the shadows without impending fear of deportation. DACA does not, however, let these young individuals apply for a "green card," or permanent residency in the U.S. They cannot freely travel or take advantage of the other benefits of having a green card.
Some of these DACA applicants, however, might be discovering additional though less-publicized relief. A New York Times article last month highlights an unintended consequence of DACA, which we are seeing in our practice: Applicants seeking legal help for the first time sometimes find out they qualify for visas they never knew existed. These visas provide exceptional benefits apart from the DACA program.
The Times article describes three specific visas, available to both children and adults:
- U visas are available to victims of certain crimes who assist law enforcement with the investigation and/or prosecution of the crime.
- T visas are given to victims of human trafficking. Three years after receiving a U or T visa an individual is allowed to apply for a green card.
- The Violence Against Women Act (VAWA) is designed to protect spouses, children, and parents of abusive U.S. citizens or green card holders. Because of the relationship between the victim and the perpetrator, frequently individuals who apply for visas under VAWA are eligible to receive their green cards quickly thereafter.
A fourth type of visa is perhaps the best-kept secret for juveniles lacking immigration status in the U.S. In 1990, Congress created Special Immigrant Juvenile (SIJ) Status. SIJ status is specifically designed for children (i.e., individuals under 21) who have been abused, abandoned, or neglected by a parent. Upon approval, the child is eligible to apply for a green card in the U.S.
SIJ status has made very little news nationwide, perhaps because the application process differs from any other visa application process. The first step involves going to a state court, typically the Juvenile and Domestic Relations (J&DR) court, to obtain an order from a judge. The judge must state that:
- The child is dependent on the court or placed in the legal custody of a non-abusive parent, relative, or third party;
- It is not in the child's best interests to return to his/her home country; and
- The child cannot be reunited with one or both parents because of abuse, abandonment, or neglect.
Typically the required order is obtained through a custody or guardianship proceeding at the J&DR court. Although for immigration purposes a child is considered to be someone under 21 years of age, the jurisdiction of a J&DR court often ends when a child turns 18. It is therefore extremely important to identify children eligible for SIJ status at an early age, preferably well before they turn 18.
After receiving the appropriate order from a state court, the child then may apply to the U.S. Citizenship and Immigration Services (USCIS). The process then proceeds similar to a typical visa application, with the opportunity to apply for permanent residence upon approval of the visa petition followed by the ability to apply for citizenship.
A child can apply for SIJ status regardless if he/she is currently in removal proceedings.
If you or someone you know qualifies for one of these alternative immigration benefits, it is recommended to seek legal advice as soon as possible to ensure he/she remains eligible.