US Immigration Options For Children Under 21
New York Immigration lawyer Alena Shautsova helps children to find and pursue Immigration solutions in the USA.
The Immigration laws in the United States are complicated and typically unforgiving when it comes to prior status violations, criminal history, or illegal entries. For adults, the exceptions for such conduct are limited and hard to qualify for in most circumstances. For children, however, the normal exceptions to unlawful conduct are available and additional special exceptions are made available. In addition to the normally available options for individuals to immigrate to the US, children under the age of 21 have the following additional options:
- Special Immigrant Juvenile Status
- Violence Against Women Act (based on abuse by a parent, stepparent, or spouse)
- Cancellation of Removal for non-permanent residents
- Derivative Citizenship
- Family Immigration
- Victim of a Crime - U nonimmigrant Status
- Victim of Human Trafficking - T nonimmigrant status
Special Juvenile Immigration Status
One of the least well-known status’ available to children under the age of 21 but surprisingly many children without status in the US qualify for it. The procedure itself is quite extensive but the qualifications for it rely on three (3) main points:
- The child is under 21 years of age at the time of filing
- The child is unmarried
- The child has been abandoned, neglected, or abused by at least one of their parents
The terms abandonment, neglect, and abuse have a specific meaning in the law, and if you or a child you know fits the first two (2) criteria, but not sure about the third criteria I suggest reviewing my article dedicated specifically to Special Immigrant Juvenile Status or “SJIS” status. If at least one parent is not in the life of the child and does not communicate with the child, chances are they can fit the third criteria. It is also important to note that this status takes some time to get, and while as long as an SJIS applicant files before the age of 21, they can be over the age of 21 when they get the green card. However, the SJIS applicant must remain unmarried at the time they receive their green card.
Violence Against Women Act
The Violence Against Women Act, commonly referred to as VAWA, was designed to protect immigrants both men and women when coming forward to report incidents of domestic violence against a US Citizen spouse. VAWA cases are becoming better known to the public with the help of the #Metoo movement. However, it is not well known that children of battered spouses or children who have been battered by a US Citizen parent or stepparent can file for a derivative status or even sometimes as a primary petitioner if their non-US Citizen parent does not file a VAWA case. For a child to file for a VAWA case, derivative or primary petitioner, they must meet two (2) criteria:
- Their parent, stepparent or spouse must be a US Citizen
- Their US Citizen parent stepparent or spouse must have been abusive to them
One of the qualifying abuses for a VAWA case is emotional abuse. For adults, the threshold for meeting the standard for emotional abuse is much higher than a child. The reason the threshold is higher is that children’s brains are not fully developed, and it is harder for them to understand the reasons domestic violence occurs. Moreover, they are typically powerless to remove themselves from a domestic violence type of situation than an adult. The toll takes on a child to witness an argument or abuse of power by one parent to another is considerably worse than the toll it takes on the parents to do the actual arguing.
If you are paying attention, you might have noticed that if you can qualify for a VAWA case as a child, you can also qualify for SJIS. If one parent is abusive to another parent, and it has an emotionally abusive impact on the child, the biological parent can be considered neglectful and in some cases abusive to their child for failure to protect the child from the emotional harm the US Citizen spouse, parent or stepparent is inflicting. So which is the right option to choose in this case? The one that is faster? The one that is cheaper? Or the one that is safer? Luckily, immigration laws aren’t so dichotomous to force children to make a decision between which process they best “fit” into: A child can choose and file for all available options. More so, most of the options available to children do not require government filing fees which can save a child potentially thousands of dollars.
As you will see later when we get to the Derivative Citizenship status section, VAWA cases for children are usually due to the abuse of stepparents because most children that have US Citizen parents apply for derivative citizenship. Nevertheless, the option is still available to them and if they can afford the legal fees, or the time it would take them to assemble the package for submission to USCIS, they should leave no stone unturned. A change in the law can come at any moment, and while usually they are not retroactive and people who file their cases prior to the law change get grandfathered-in to the law at the time of filing, there is no such requirement in law.
Asylum is available to all immigrants, regardless of their age if they fear persecution because of their race, religion, nationality, membership in a particular social group, or political opinion. However, children have special guidelines and procedures to process asylum claims which makes it easier for them to win their case than an adult with a similar case. Children may have an easier time winning their asylum cases in court or at the interview stage because the threshold for meeting various criteria is lowered for children. It does not take much-specialized knowledge to understand that children scare easier than adults. Most children are afraid of the dark when we shut off the lights, let alone adults who tell them or their parents they will kill them because they dislike their race, religion, nationality, social group or political opinion.
Cancellation of Removal
Cancellation of Removal for children under 21 is typically a rare occurrence because one of the criteria to apply for this status is that the applicant must demonstrate at least ten (10) years of continuous presence in the US. For young children, this is unlikely because a second requirement of the cancellation of removal application is that the applicant must have a lawful permanent resident or US Citizen spouse, child, or parent. The third requirement that is difficult for children to attain is that the applicant must be in removal proceedings to apply for such a status. Most children under 21 who are in removal proceedings and have a parent who is a lawful permanent resident or US Citizen, will apply directly through their parent with an immediate relative petition. Afterward, they will show the approval of the petition to the judge and the judge can issue the child’s green card if there are no other issues in the case.
Some of the reasons a child will apply for cancellation of removal include:
- Unlawful presence bar, and a lack of a US Citizen spouse for an exception.
- Illegal Entry and lack of both parent and spouse to whom the applicant can show will have hardship without the applicant.
- For older youth, the lack of a parent or spouse to apply for an immediate relative petition. Cancellation of removal allows an applicant to show hardship to a child which gives an additional option for them if they require a waiver for the unlawful presence or illegal entry.
More information on Cancellation of removal for non-lawful permanent residents.
At times, a child would be already a US citizen. At times, a child learns about it only when he/she is an adult. Typically, it happens when a person is placed in removal proceedings, and a person believes he/she is already a US citizen because his/her parents are. But the person him/herself never obtained proof of citizenship. Learn about automatic citizenship for children here.
Here, a child may have derived status from parents’ sponsorship, from parents’ eligibility of simply was sponsored by family members. A child’s parents’ immigration history has to be carefully examined to see if a child could benefit from NACARA, 245i exception, parole, adjustment, etc.
Victim of a Crime - U Nonimmigrant Status
A child may be a direct or indirect victim of a crime, or may qualify as a derivative, or may qualify for adjustment of status based on principal’s adjustment related to a U visa. Learn more about it.
Victim of Human Trafficking – T Nonimmigrant Status
A child may be a victim of human trafficking: imagine a situation when one’s own parents bring a child to the US to… work! I have encountered such heartbreaking cases, and I am sure there are more of them… A child who is subjected to forced labor may qualify for a T visa/status in the US. So, as the child who meets other categories of human trafficking.
To reserve a private, confidential consultation, please call our NYC Immigration lawyers at 917-885-2261 or contact us by using this link.