Home / Podcast / SIJS Visa applicant eligibility | Attorney Kousha Adhami | 2023

SIJS Visa applicant eligibility | Attorney Kousha Adhami | 2023

SIJS Eligibility and Application Tips

Welcome to the latest episode of our VivaVisa podcast, hosted by Amir Sed and featuring renowned SIJS Program Attorney Kousha Adhami. In this insightful session, we delve deep into the intricacies of the Special Immigrant Juvenile Status (SIJS) immigration process and SIJS visa eligibility. SIJS is a vital pathway for young immigrants, including Latinos and other youths without legal status, seeking a green card in the United States.
Attorney Kousha Adhami, with his extensive expertise, sheds light on the critical steps and requirements for navigating this complex legal landscape. This episode is a must-listen for anyone looking to understand the nuances of obtaining a green card for illegal immigrants through the SIJS program, offering valuable guidance and expert advice to help pave the way toward lawful residency in the U.S.

🌟 Key Highlights:

  • Demystifying SIJS Eligibility: Attorney Kousha Adhami breaks down who can apply for the SIJS visa, providing a comprehensive review of the criteria.
  • Understanding the Process: Learn about the state court procedures, age limits, marital status, and other critical factors affecting SIJS eligibility.
  • Your Questions: Have queries about obtaining a green card through the SIJS program? This episode is your go-to resource for clear and precise answers.

Sharing the VIVAVISA Podcast might light the path to a brighter future for someone in your network. Listen today and become a beacon of hope and information.

Hello everyone. This is Amir Sed, and you’re listening to the second episode of the VivaVisa podcast by Adhami Law Group.
In the first episode, Kousha Adhami, the founder of Adhami Law Group, talked about the differences between the visas, and then he talked about the SIJS program. In this episode we will discuss about the eligibility of the applicants and who can apply or who cannot apply for these programs. We are going to learn about the tips that you may need to consider if you want to apply for this program. Thanks for listening and joining us, now let’s begin.

Hi Kousha, welcome to the show.

Attorney Kousha Adhami:
Hi Amir, how’re you doing, man? And thank you for having me.

SIJS Applicant Eligibility

Of course. Ok, Kousha. Let’s begin with the first question. Last time, you talked about the basics of the SIJS visa. And what is it all about? and it was like the general overview about the whole process. Now we want to go further and go a little bit deeper. Would you please let us know who can apply and who cannot apply for these programs?

Attorney Kousha Adhami:

Yes, Amir. Definitely. I mean it’s a bit complicated question because it depends at what stage you’re in. I previously explained in my previous episode for listeners the different stages required for an SIJS petition; however, I’m just gonna again rephrase the requirement for an SIJS visa applicant. so, in order for a child to be eligible to apply for SIJS,

1: They must be under the age of 21 years.
2: They must be physically present in the US. That’s something that can definitely must. It’s a must.
3: The child must be unmarried.
4: The child must be placed under or in the custody of an individual within a state court or in a juvenile court.
5: The state court must make the findings that reunification with one or both parents is not viable due to abuse, neglect, and or abandonment under the state law.
6: and the last requirement in the state court process on the first step is that the court must make the findings that is not in the child’s best interest to return to his country.

Now, I’m gonna give a couple of examples as to who does not qualify for SIJS.

OK, so number one, for example, would be a child who has reached the age of 21 years old. After the child reaches the age of 21 there is no, we cannot do anything else. Because even if the state court grants the petition after the child reaches the age of 21, the USA will not accept this process. because USCIS strictly requires the child to be under the age of 21. we’ve had cases where we obtained the predicate order SIJS order from the state court before the child turned 21. I would say maybe even 20 days or 30 days, but we made sure that USCIS received the petition before she reached the age of 21. because after the age of 21 that SIJS is not considered and the US will deny the petition.

Another example that a child who cannot obtain a state predicate order in the state court is if the child is actually residing with both parents in the United states or in California. Because the requirement is that the child must be or reunification with one or both parents is not viable. If the child is living with both parents, how the court can make the finding so that’s kind of self-explanatory?

The third example that I would have to give is this comes up a lot is that the child or the petitioner must be unmarried. The definition of a child for the purposes of immigration is a person who is unmarried and under the age of 21. it sounds a little bit confusing because majority states define a minor as someone who is under the age of 18 but for the purpose of immigration the child is defined as any person who is under the age of 21 years and is unmarried.

So talking about the married aspect of the child or minor because obviously if you’re over the age of 18 you can get married and I’m not sure under what circumstances that child who is under the age of 18 years old wanna to get married but you know I guess every state has its own emancipation laws but I’m not going to go and talking about it .
so if the child gets married at any stage before her green card is approved the SIJS is revoked. the child must remain single and unmarried. we’ve had some complicated cases where throughout the stage before the green card was granted after they state court process during the second stage which is the I 360 stage the child got married and USA’s automatically revoked the petition. so that’s definitely you know.

another example would be that makes the child ineligible or a SIJS applicant for this particular petition is that if the child or the youth in this particular case receives some sort of a criminal conviction you know, immigration and state law have different definition for criminal activity so certain criminal convictions trigger inadmissibility and deportability for the purposes of immigration that means the applicant or the SIJS applicant in this case could automatically lose its SIJS petition or application because of the criminal conviction that they’ve received.

and we had few cases that this has happened but it gets a little more complicated because if the crime has happened before the age of 18 then he or she is considered a minor for the purpose of that particular state or like for example in California and there are different regulations that govern criminal activities for minors were under the age of 18 and then we have you know criminal convictions that fall under felony, aggregated felony, misdemeanors, it’s just a wide area that you know, even sometimes I have to consult an attorney who specializes in criminal immigration what we call them as a probs or crim immigration attorneys.

OK another example or another category where the child does not call for facetious is if they have some sort of a prior immigration violations. this could include some sort of a prior deportation order or immigration violations that also trigger inadmissibility and deportability. so when I say inadmissibility that’s a term of art and same thing with deportability. deportability doesn’t necessarily mean that you get deported it’s what’s defined under INA that makes the applicant ineligible for the particular relief or a program that they’re applying for.

and lastly another example that can come to mind, again this list is not exhaustive. I mean it could be so many other factors that can revoke or makes the SIJS applicant not be eligible for SIJS but another example would be USCIS does not simply consent to the grand of SIJS so and it’s really rare because USCIS can always exercise its discretion to grant you know SIJS or not. again it’s rare circumstances when they don’t consent to the grant but they can because you know USCIS always reserves that discretion to grant or deny the petition.

SIJS Application Eligibility and Process

Perfect. Let’s review. Would you please review the whole process and let us know what are the steps of an SIJS case?

Attorney Kousha Adhami:

definitely Amir,  OK so there are, I usually categorize it in three different stages.

1:  is the state court process. This is the process where or the stage where takes place in the state court. we file the petition or represent the client in the state court to obtain the predicate order. the state predicate order that we later sent to immigration. in that process court must appoint an individual in the under the custody of the child makes the findings for reunification should not be viable due to abandonment neglect or abuse and the court also has to make a finding that is not in the child’s best interest to return to his home country that’s stage #1.

2: the second stage is what I usually refer to as the USCIS stage. this is where we filed the state predicate order with USCIS and the predicate order must be filed usually for the most part with the child’s birth certificate along with form I-360. So this is the second step where the visa is actually filed with USCIS.  let me just reiterate ,when I say visa I don’t necessarily refer to a visa like a tourist visa where you get to go outside and come back in. OK?

The visa is the I-360 petition. that’s what USCIS has designated this petition to be called the special immigrant juvenile status visa. OK, but the second stage needs to be completed the I-360 and then if the I-360 is not approved the child cannot proceed with the third step which is the green card stage. OK? and this is when the green card is filled with USCIS. so first step is the state court, second step is filling the I-360 wiht USCIS and the third step is the green card. OK. the green card stage or the adjustment of status application so if I refer to it as AOS or green card stage they have the same terminology but I just wanna not confuse our listeners and pretty much refer to it as a green card stage

OK, now the green card stage, OK can also be a bit complicated because even though USCIS initially or originally reserved jurisdiction to grant the green cards the green card stage can also happen at immigration court if the child is in removal proceedings. so when I say removal proceedings I’m referring to the immigration court because if the child is in immigration court two options are present. either the immigration judge determines that the green card process can happen with USCIS to the immigration judge terminates jurisdiction with immigration court and sends the case back to USCIS or they immigration judge reserves the jurisdiction and the green card or application of I-45 adjustment of status must be filed and granted by the immigration judge. so that’s why I like to break it break this down.

the I-360 is always filed with USCIS. USCIS has a ultimate jurisdiction of it but the green card depending on where the child is because in lot of our cases we have unaccompanied minors who entered the US and or initially placed in immigration court so umm it can even make the the process even more overwhelming and complicated because when a client comes to our office with their relative or parents who want to do SIJS I usually tell them listen we’re going to be at three different places at the beginning we’re going to be in state court, USCIS and immigration court. so we have to pretty much knock them one by one and at the end stick to either USCIS or immigration court for green card.

Age Criteria and Court Jurisdiction

OK, so we have three steps for the SIJS case. the first one is the state court as you mentioned what causes denial in the state court?

Attorney Kousha Adhami:

OK Amir. it’s a bit again complicated question because it’s a very fact driven but I’m gonna give examples of what we have encountered or what I’ve seen throughout my practice. so a couple of examples of causes SIJS petition that is denied in state court would be for example if the petition is improperly filed and the child ages out. so as I mentioned previously USCIS must receive the predicate order before the child reaches the age of 21.

So this means that the predicate orders must have been issued before the child reaches the age of 21 so USCIS can receive it. so the second let me see how I can put this .the second causes that I’ve seen or mistakes I’ve seen even with attorneys is that they filed the petition in the wrong court. you must ask yourself what do you mean by that? OK. so it’s a matter of jurisdiction and it’s the matter of where the petition can be found. if the child is under the age of 18 years old if the child is under the age of 18 years old and residing with one parent they state court process or the SIJS petition must be filed in a family law court. so the child is residing with one parent.

and must be 18 years old.

Attorney Kousha Adhami:
and under 18 years old.

Not 21!

Attorney Kousha Adhami:
Yes. because California law defines a minor who is 18 years old and since we’re doing a custody so family law court reserves jurisdiction for a minor who is under the age of 18 and one parent is present. so for example if we have a mom, OK who is like for example 30 years old and the child is 15 years old and this case the child was abandoned and neglected by his or her father in her home country or in the US doesn’t really matter. the petition must be filed in a family law court.
now there are different factors that determines that the petition is to be filed in a guardianship court which is a subsection of a probate court so if the child is residing with one parent, OK the child is residing with one parent and the child is over the age of 18 and the parent mom or dad are filing the petition, the petition must be filed in a probate or guardianship court. because family law does not have jurisdiction for the minor who has reached the age of 18 and there are two other examples where the petition is filed in a guardianship court.
First example is that both parents do not reside in the US so we’re making their reunification not viable with both parents and a family member is filing the petition. Petition like for example from uncle for a niece or nephew must be filed in the guardianship court. and the last example of our scenario would be if it if a non relative like for example a friend or an employer or whatever is filing the petition for the minor. so if it’s a non relative the jurisdiction lies with the guardianship or probate court. OK!

In the first episode you mentioned that the applicant must be under 21 and not married but now you said that the applicant must be under 18 years old. what is that? what do you mean by that? I’m a little confused.

Attorney Kousha Adhami:
My shorter response is to tell you that welcome to the story of my life trying to explain this. immigration defines a child as an unmarried person under the age of 21 years.
but state courts still reserved the jurisdiction to have their own definition of a child. however regardless of the circumstances so long as the predicate order is issued before the child has reached the age of 18 and send to USCIS we’re OK. OK?! for family law court, family law courts do not entertain or grant petitions for SIJS or custody orders if the child has reached the age of 18 years or older. that’s why California assembly has passed a law, I don’t recall exactly when it was I believe it’s in 2015 or 2016 to extend the age of guardianship in correlation with a SIJS petition to 21 years of age.
OK so for example if Maria, mom is here with her daughter and her daughter is 19 years old and she’s been abandoned, neglected by her father the petition must take place in a guardianship court and the guardianship court will grant the petition, I mean of course you must meet all the requirements but the guardianship court will grant the petition even though the child is over the age of 18 in correlation with a SIJS aligning.
so the guardianship court will appoint the mom as a guardian and will make the SIJS findings regarding reunification and factors that are not in the best interest of the child. Which takes us to the next step and to a situation that I encounter a lot from clients and other attorneys who do not specialize in SIJS.
so we get calls to our office where the child is 20 years old and is for example turning 21 in few months like four months five months OK, in this case what we usually do is that once we screen the client to determine that they qualify for SIJS and they have the petitioner like for example a mom or a family member, the petition must be filed immediately OK and the hearing date must take place before the child reaches the age of 21 years of age.
OK. so for example in one of our cases we had a client who came to our who came to our office and she was 20 years and I believe like nine or ten months and her previous attorney completely screwed up her case he didn’t do SIJS, he waited last minute, and then client found about us about SIJS and she was fears, she was angry, mom was upset, daughter was upset, because they spend a lot of money with that previous immigration attorney who didn’t do a good job and did not follow the SIJS for them.
so when they hired us what we did was we filed the SIJS petition immediately and we got a hearing for, I believe she turned 20 she was turning 21 on like September 5th and but we got a hearing for December So what we had to do was to file an ex-party application an ex-party is just fancy ward to ask the court to exercise its discretion based on the exigent circumstances that we have because she was turning 21 to advance the hearing to an early date. so once the judge advanced the hearing to an early date which I believe was in August we attended the hearing, got the order granted and file the predicate order on the I-360 with USCIS immediately.

perfect OK Kousha thanks for joining us and I want to say thank you to our listeners. I hope you enjoyed and learned from today’s episode. Make sure to check out the show notes with the description for access to our website and make sure to share this episode with friends and subscribe wherever you listen to your podcast.
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