A child’s immigration status or opportunity for U.S. citizenship can be helped or harmed in state court proceedings. Yet immigration status is often overlooked in family and juvenile law cases. Immigration law is complex and involves fluid statutes, regulations, policy memos, and politics. But it does not need to be a mystery. This article helps nonimmigration attorneys identify immigration issues for children not born in the United States. The attorney should then consult with an immigration attorney before developing a case strategy.
Immigration in General
To understand child immigration issues, an attorney must first have a general understanding of how the U.S. immigration system works. For the most part, the U.S. Department of Homeland Security (DHS), by its U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) divisions, enforces U.S. immigration laws. The U.S. Department of State also has a role, when the individual applying for an immigration benefit or citizenship determination resides or is physically located outside the United States.
In every immigration case, there are two steps: first, petitioning to classify an individual as eligible for a particular immigration benefit or classification; and second, applying to obtain a visa based on the eligibility. Obtaining the visa is called “adjustment of status” if sought within the United States, and is handled by USCIS. If sought abroad, it is called “consular processing” and is handled by the State Department.
In either route, applicants must show that they are “admissible” to the United States. To be admissible, an individual must show, among other things, that he or she is healthy (mentally and physically), does not have a significant criminal background, and is not barred from entry due to past unlawful presence in the United States. Fingerprint-based background checks and medical exams are required for these purposes.
Success by either route results in issuance of a visa to the applicant. A visa is a card that evidences an individual’s right to enter and be present in the United States. A visa can be temporary (called a nonimmigrant visa) or permanent (called an immigrant visa). Common examples of nonimmigrant visas for children include student visas (F-1), exchange-visitor visas (J), and tourist visas (B-1/B-2).
There is only one type of immigrant visa: a permanent one. This visa is called a “green card”; an immigrant with a green card is referred to as having legal permanent resident (LPR) status. LPR status is the most coveted of statuses, because it entitles immigrants who hold it to live and work in the United States for the rest of their lives. It can also lead to U.S. citizenship. The underlying basis for an immigrant visa varies: it can be family-, employment-, or humanitarian-based. Immigrants without visas who are present in the United States are “undocumented,” or, as some people say, “illegal aliens.”
As mentioned above, unlawful presence is a ground for inadmissibility. An individual unlawfully present in the United States for more than six months is barred from re-entry for three years. An individual unlawfully present for more than one year is barred for 10 years.1 The unlawful presence rules are triggered only when the individual leaves the United States and seeks re-entry and when he or she turns 18 (children are not considered to have the requisite mens rea for unlawful presence).2
The last general concept to understand is the important distinction between an affirmative immigration filing and a defensive one. A defensive filing is made while the child is already in removal/deportation proceedings; in other words, ICE already knows about the child and the child’s lack of status.3 An affirmative filing is the equivalent of raising one’s hand and bringing the child and his or her lack of status to the attention of the federal government. When making such a filing, the attorney should be confident of the child’s eligibility and admissibility, because an affirmative filing can result in not only a denial but also removal proceedings.4
U.S. Citizenship for Children
The first step in an immigration analysis for a child is determining whether the child is a U.S. citizen. A child can become a U.S. citizen in one of five ways, sometimes without even knowing it: 1) by being born in the United States or on U.S. territory abroad; 2) by being born abroad to a person who is a U.S. citizen if certain genetic and physical-presence requirements are met by the parent; 3) if the child’s immigrant-parent becomes a naturalized citizen while the child is in a status derivative to the parent; 4) under very limited circumstances, by being adopted by a person who is a U.S. citizen; and 5) by naturalization after reaching age 18 and attaining five years of LPR status.
The first step in an immigration analysis for a child is determining whether the child is a U.S. citizen.
Two points about U.S. citizenship for children are particularly relevant to family and children’s law attorneys. First, terminating a parent’s parental rights before determining the parent’s and the child’s immigration status can eliminate a child’s arguments for citizenship and status.
Second, an adoption will not convey U.S. citizenship to the child unless the requirements of the Child Citizenship Act (CCA) are met.5 The CCA requires the following: 1) at least one adoptive parent is a U.S. citizen; 2) the child is under age 18; 3) the child resides in the legal and physical custody of the U.S. citizen-adoptive parent; 4) the child has been lawfully admitted for permanent residence; and 5) all statutory and treaty-based adoption requirements have been met (often requiring an adoption or immigration petition before the child turns 16).
The missing element in many cases is securing LPR status for the child before the adoption is completed. Finalizing an adoption of an undocumented child will not convey U.S. citizenship to the child under the CCA.
Another common mistake in state termination of parental rights (TPR) and adoption proceedings is failing to realize that the Hague Convention on Intercountry Adoption applies. The treaty is beyond the scope of this article, but it is important to understand that, in general, it applies to any TPR or adoption proceeding in which a U.S. citizen-adoptive parent is adopting a non-U.S. citizen-child who is a citizen of a Hague country.6
Finally, with the rise in international surrogacy and assisted reproductive technology (ART) arrangements, family law attorneys should be aware of the State Department’s problematic interpretation of how U.S. citizen-intended parents may convey U.S. citizenship to their children born abroad through ART. An example is U.S. citizens who contract with medical clinics in India to match them with an Indian surrogate and handle the medical procedures. Depending on the genetic material used, when that child is born in India, the child could have significant U.S. immigration problems. Some children can end up stateless, and others without U.S. citizenship and in need of a visa before they can enter the United States with their parents. Those visas can take months to obtain. An immigration attorney should always be involved in international ART cases, before any genetic material is exchanged and certainly before the child’s conception.
Immigration Remedies for Children
If a child is not a U.S. citizen, there are several ways in which the child might still be eligible to enter or remain in the United States. Below is a list of those visas, with an emphasis on Special Immigrant Juvenile Status (SIJS), a little known but very special visa for children.
Special Immigrant Juvenile Status. SIJS is a humanitarian form of immigration relief for abused, neglected, or abandoned children in the state foster care system or similar juvenile proceedings, for example,CHIPS, JIPS, TPR, and Wis. Stat. chapter 48 and chapter 54 guardianships. Under limited circumstances, even family court proceedings can qualify. SIJS leads to LPR status.
The elements of SIJS are as follows: 1) the child is under age 21, unmarried, and present in the United States; 2) a state court with juvenile jurisdiction over the child has entered an order with SIJS findings; 3) the child is dependent on the state court or has been “legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court”; 4) the state court has found that reunification of the child with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and 5) the state court has found that it is not in the child’s best interests for the child to be returned to his or her country of origin.7
Obtaining SIJS for a child is a two-step process: first, the attorney obtains a special order from the state court that has juvenile jurisdiction over the child; and second, the attorney files an SIJS petition and an application for adjustment of status for the child with USCIS.
SIJS is rarely used, but the benefits to the child are substantial: LPR status; employment authorization; ability to get a driver’s license and government-issued identification; eligibility for public health insurance, in-state college tuition, scholarships, and study-abroad programs; and the possibility of becoming a U.S. citizen after turning 18. Often children who are eligible for SIJS are not eligible for any other type of visa. In Wisconsin, a child typically ages out of SIJS eligibility at age 18, but some are eligible until age 19.
Immediate Relative or Other Family Member. If the child is a child of a U.S. citizen or a person with LPR status, the child can obtain LPR status through that family member. The definition of child for this purpose includes a step-child but excludes an adopted child unless several other requirements are met, sometimes including two years of residence abroad with the parent.8
T Visa. This is a nonimmigrant visa, which can lead to LPR status, for a child who has been trafficked and would suffer extreme hardship if removed from the United States. The child can also obtain this visa if his or her parent has been trafficked. Cooperation with the investigation is required for non-child victims.9
U Visa. This is also a nonimmigrant visa that can lead to LPR status. The U visa can be used for a child who has suffered substantial physical or mental abuse as a result of having been the victim of rape, incest, domestic violence, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, abduction, false imprisonment, assault, or witness tampering. The child can also obtain this visa if his or her parent is the victim of one or more of these acts. The victim must cooperate with the investigation, and the responsible law enforcement agency must certify that the victim is cooperating.10
Violence Against Women Act. This is a family-based petition for domestic abuse victims, which leads to LPR status. Normally, in family-based cases, the family member who is a U.S. citizen or has LPR status must “sponsor” the immigrant, sign the petition, attend the interview, and so on. The Violence Against Women Act (VAWA) created an exception to this rule for abused immigrants if the abuser is a U.S. citizen or has LPR status. A VAWA petition does not require the abusive family member’s help. The definition of abuse for this visa is progressive and includes psychological, not just physical, abuse.11
Asylum. LPR status can be granted to an individual if the individual has been persecuted or has a well-founded fear of persecution by the government of the individual’s country of origin or by a group that the government is unable or unwilling to control. The persecution must be based on race, religion, politics, nationality, or social group. An individual must be present in the United States to apply for asylum.12
Temporary Protected Status. Temporary protected status (TPS) is not a visa but a humanitarian status that carries with it the U.S. government’s promise to not remove the individual for a defined period of time. TPS is only available for individuals who are present in the United States and who are from countries designated by the DHS as TPS countries due to extraordinary and temporary political or physical conditions, for example, political unrest in Honduras and the 2011 earthquake in Haiti.13
Humanitarian Parole. Like TPS, humanitarian parole is not a visa. It is a status, rarely granted, that gives the individual permission to enter the United States for a brief period of time due to a compelling emergency. In 2011, it was used to bring to the United States Haitian orphans who were in the process of being adopted internationally when the earthquake occurred. It is also sometimes used for international surrogacies when laboratory errors cause the child to lack a genetic link to the parent who is a U.S. citizen or has LPR status.14
Deferred Action for Childhood Arrivals. Like TPS and humanitarian parole, Deferred Action for Childhood Arrivals (DACA) is not a visa; it is a promise by the U.S. government to not deport the child during the current presidential administration. President Barack Obama created this status by executive action to help undocumented children in the United States while passage by Congress of the DREAM Act is pending.
The elements for this status are as follows: 1) the individual is age 15 or older or in removal proceedings; 2) the individual came to the United States before his or her 16th birthday; 3) the individual was under age 31 and had no valid immigration status on June 15, 2012; 4) the individual has continuously resided in the United States between June 15, 2007 and the present; 5) the individual is currently in school, has graduated from high school or obtained a GED, or was honorably discharged from the U.S. Armed Forces; and 6) the individual has not been convicted of a felony, a “significant” misdemeanor, or three or more other misdemeanors and does not otherwise pose a threat to national security or public safety.15
The benefit of this status is employment authorization and lawful presence. The risk is ineligibility and the affirmative filing causing removal proceedings to commence. In addition, there are some who fear the list of DACA recipients could later become a list of individuals to remove.
Temporary Visas. Examples include student, cultural-exchange, and tourist visas and derivatives of a parent’s temporary visa.16
Conclusion
Harmful mistakes to a child’s immigration status or chance at U.S. citizenship can be made in state court proceedings. The key question to ask is where the child was born. If the child was not born in the United States, an immigration attorney should be consulted as early in the case as possible.
The immigration status of a child is an issue of stability and permanence, as important as education and mental and physical health. The Wisconsin court system should recognize that immigration attorneys are as important for children as guardians ad litem,social workers, and psychologists.
Endnotes
1 INA § 212(a)(9)(B), codified at 8 U.S.C § 1182.
2 The unlawful presence rules are especially important for planning for a foster child’s aging out. If a child ages out of foster care without immigration status, he or she might have to leave the United States six months after turning 18.
3 There is no law prohibiting the removal of children solely on the basis of age.
4 This is why immigration attorneys are concerned when attorneys who do not concentrate in immigration law (and sometimes even nonattorneys) file immigration forms on a person’s behalf because the online forms look “easy.” Immigration forms are akin to tax returns, which, on their face, look easy to complete. However, the laws that underlie the forms are complex, and thus it is risky to fill out and submit immigration (or tax) forms without training or experience.
5 INA § 320, codified at 8 U.S.C 1431.
6 And now, as of July 14, 2014, the Universal Accreditation Act (UAA) may apply to non-Hague cases. Pub. Law 3331 (Jan. 3, 2012). The UAA is also beyond the scope of this article.
7 INA § 101(a)(27)(J), codified at 8 U.S.C § 1101.
8 INA § 203(a), codified at 8 U.S.C § 1153.
9 INA § 101(a)(15)(T), codified at 8 U.S.C § 1101.
10 INA § 101(a)(15)(U), codified at 8 U.S.C § 1101.
11 INA § 101(a)(51), codified at 8 U.S.C § 1101.
12 INA § 208, codified at 8 U.S.C § 1158.
13 INA § 244, codified at 8 U.S.C § 1254a.
14 INA § 212(d)(5), codified at 8 U.S.C § 1182.
15 DHS Memo, Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).
16 INA § 101(a)(15), codified at 8 U.S.C § 1101.
