Special Immigrant Juvenile Petitions, 54978-54986 [2011-22625]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 76, Number 172 (Tuesday, September 6, 2011)]
[Proposed Rules]
[Pages 54978-54986]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22625]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 76, No. 172 / Tuesday, September 6, 2011 / 
Proposed Rules

[[Page 54978]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 204, 205, and 245

[CIS No. 2474-09; DHS Docket No USCIS-2009-0004]
RIN 1615-AB81


Special Immigrant Juvenile Petitions

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Proposed rule.

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SUMMARY: The Department of Homeland Security (DHS) proposes to amend 
its regulations governing the Special Immigrant Juvenile (SIJ) 
classification, and related applications for adjustment of status to 
permanent resident. The Secretary may grant SIJ classification to 
aliens whose reunification with one or both parents is not viable due 
to abuse, neglect, abandonment, or a similar basis found under State 
law. This proposed rule would require a petitioner to be under the age 
of 21 only at the time of filing for SIJ classification. This proposed 
rule would require that juvenile court dependency be in effect at the 
time of filing for SIJ classification and continue through the time of 
adjudication, unless the age of the juvenile prevents such continued 
dependency. Aliens granted SIJ classification are eligible immediately 
to apply for adjustment of status to that of permanent resident.

DATES: Written comments must be submitted on or before November 7, 
2011.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2009-0004 by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: You may submit comments directly to USCIS by e-
mail at USCISFRComment@dhs.gov. Include DHS Docket No. USCIS-2009-0004 
in the subject line of the message.
     Mail: Sunday Aigbe, Chief, Regulatory Products Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 20 Massachusetts Avenue, NW., Suite 5012, Washington, DC 
20529-2020. To ensure proper handling, please reference DHS Docket No. 
USCIS-2009-0004 on your correspondence. This mailing address may be 
used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory 
Products Division, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 20 Massachusetts Avenue, NW., Suite 
5012, Washington, DC 20529-2020. Contact Telephone Number (202) 272-
8377.

FOR FURTHER INFORMATION CONTACT: Rosemary Hartmann, Office of Policy 
and Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2099, telephone (202) 272-8350 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background and Legislative Authority
III. Special Immigrant Juvenile Classification and Related 
Adjustment of Status
    A. Eligibility Requirements
    B. Consent Requirements
    C. Application Process
    D. Adjudication and Post-Adjudication
    E. Adjustment of Status
IV. Regulatory Requirements
    A. Regulatory Flexibility Act
    B. Unfunded Mandates Reform Act of 1995
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    D. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Family Assessment
    H. Paperwork Reduction Act

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. U.S. Citizenship and Immigration Services (USCIS) also 
invites comments that relate to the economic, or federalism effects 
that might result from this proposed rule. Comments from individuals 
and agencies with direct experience handling SIJ cases are particularly 
encouraged. Comments that will provide the most assistance to USCIS in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information or authority that support such recommended 
change.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2009-0004 for this rulemaking. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information provided. See the ADDRESSES section 
above for information on how to submit comments. Those wishing to 
submit anonymous comments should do so electronically at https://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov.

II. Background and Legislative Authority

    Section 101(a)(27)(J) of the Immigration and Nationality Act of 
1952 (INA or Act), as amended, 8 U.S.C. 1101(a)(27)(J), permits the 
Secretary of Homeland Security to grant special immigrant juvenile 
classification to certain aliens whom a juvenile court has declared to 
be dependent on the court, or whom the juvenile court has committed to 
or placed under the custody of a State agency, department, individual, 
or entity. The juvenile court must determine that reunification of the 
alien with one or both parents is not viable due to abuse, neglect, 
abandonment, or similar basis under State law. In addition, it must be 
determined in administrative or judicial proceedings that the return of 
the alien to the alien's or the alien's parent's country of nationality 
or last habitual residence would not be in the alien's best interest.
    This proposed rule would implement:
     The Immigration and Nationality Technical Corrections Act 
of 1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994),
     The Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations Act, 1998 (CJS 1998 
Appropriations Act),

[[Page 54979]]

Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997),
     The Violence Against Women and Department of Justice 
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 
2960 (Jan. 5, 2006), and
     The William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008 (TVPRA 2008), Public Law 110-457, 122 Stat. 
5044 (Dec. 23, 2008).
    The Immigration and Nationality Technical Corrections Act of 1994, 
the CJS 1998 Appropriations Act and TVPRA 2008 amended section 
101(a)(27)(J) of the Act, 8 U.S.C. 1101(a)(27)(J), which permits 
certain juvenile aliens to petition for special immigrant juvenile 
classification, and section 245(h) of the Act, 8 U.S.C. 1255(h), which 
permits aliens classified as special immigrant juveniles to adjust 
status to permanent resident.
    The Immigration and Nationality Technical Corrections Act of 1994 
expanded the group of eligible aliens to include not only those 
dependent on a juvenile court, but those the court has legally 
committed to, or placed under the custody of, an agency or department 
of a State. The CJS 1998 Appropriations Act limited SIJ eligibility by 
requiring that dependency be due to abuse, abandonment, neglect, or a 
similar basis under State law. In addition, the consent functions were 
added in 1998. The scant legislative history behind these amendments 
suggests that Congress intended to limit eligibility to prevent 
potential abuse of this benefit, tying eligibility more directly to 
judicial findings of abuse, abandonment, or neglect and allowing the 
government to consent to the State court's jurisdiction and to the 
granting of an immigration benefit. See H.R. Rep. No. 105-405, at 130 
(1997).
    VAWA 2005 added section 287(h) to the INA, protecting a child 
applying for SIJ status from being compelled to contact the child's 
alleged abuser or any family members of the abuser. INA section 287(h), 
8 U.S.C. 1357(h).
    The TVRPA 2008 expanded eligibility for SIJ status in a number of 
ways. First, TVPRA 2008 replaced the requirement of eligibility for 
long-term foster care with a new requirement that a juvenile's 
reunification with one or both parents is not viable due to abuse, 
abandonment, neglect or a similar basis under State law. INA section 
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). Second, TVPRA 2008 
further expanded the group of eligible aliens to include those placed 
by a juvenile court with an individual or entity. INA section 
101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). In addition, Congress 
modified the consent requirements. DHS consent is simply consent to the 
grant of SIJ status and not consent to the dependency order serving as 
a precondition to the grant of SIJ status. INA section 
101(a)(27)(J)(iii), 8 U.S.C. 1101(a)(27)(J)(iii). TVPRA 2008 vested the 
specific consent function with the Secretary of Health and Human 
Services. INA section 101(a)(27)(J)(iii)(I), 8 U.S.C. 
1101(a)(27)(J)(iii)(I). TVPRA 2008 includes age out protection so that 
an alien cannot be denied SIJ classification based on age if the alien 
was under 21 years of age when the petition was filed. TVPRA 2008 
section 235(d)(6), 8 U.S.C. 1232(d)(6).
    This proposed rule would clarify procedural and substantive 
requirements for SIJ petitions. The proposed rule also would implement 
statutorily mandated changes by revising the existing eligibility 
requirements, including protections against aging-out, adding the 
revised consent requirements, and further exempting SIJ adjustment of 
status applicants from several grounds of inadmissibility.
    This rule proposes to require that an alien be under the age of 21 
at the time of filing. The proposed rule would require that a juvenile 
be declared dependent on a juvenile court or have been legally 
committed to or placed under the custody of a State agency or 
department or an individual or entity appointed by a State or juvenile 
court. TVPRA 2008 section 235(d)(1)(A). The proposed rule would require 
that such dependency, commitment, or custody, be in effect at the time 
of filing and continue through the time of adjudication, unless the age 
of the juvenile prevents such continuation. TVPRA 2008 section 
235(d)(6), 8 U.S.C. 1232(d)(6); see proposed 8 CFR 204.11(b)(1)(iv) and 
8 CFR 205.1(a)(3)(iv)(B).

III. Special Immigrant Juvenile Classification and Related Adjustment 
of Status

A. Eligibility Requirements

    An alien seeking classification as a special immigrant juvenile 
must file a Petition for Amerasian, Widow(er), or Special Immigrant 
(Form I-360). DHS proposes to require that an alien is eligible for SIJ 
classification if he or she:
    (1) Is present in the United States;
    (2) Is under 21 years of age at the time of filing;
    (3) Is unmarried;
    (4) Has been declared dependent on a juvenile 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. Such dependency, commitment, or custody must be in 
effect at the time of filing and continue through the time of 
adjudication, unless the age of the petitioner prevents such 
continuation;
    (5) Is the subject of a State or juvenile court determination that 
reunification with one or both parents is not viable due to abuse, 
neglect, abandonment, or a similar basis under State law;
    (6) Has been the subject of a determination in judicial or 
administrative proceedings that it would not be in the alien's best 
interest to be returned to the alien's or parent's previous country of 
nationality or country of last habitual residence; and
    (7) Obtains consent from the Secretary of Homeland Security to 
classification as a special immigrant juvenile.
    Based on the CJS 1998 Appropriations Act and TVPRA 2008, the 
proposed regulation would significantly change the Form I-360 
eligibility criteria. See proposed 8 CFR 204.11(b) (currently 
204.11(c)). DHS proposes to require the petitioner to be under the age 
of 21 at the time of filing as provided by TVPRA 2008. DHS also 
proposes to require that dependency, commitment, or custody per section 
101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i), as amended by 
the TVPRA 2008, be in effect at the time of filing and continue through 
the time of adjudication, unless the age of the petitioner prevents 
such continuation.
1. Under 21 Years of Age
    Under TVPRA 2008, USCIS may not deny SIJ classification based on 
age if the alien was a child on the date on which the alien petitioned 
for SIJ classification. TVPRA 2008 section 235(d)(6), 8 U.S.C. 
1232(d)(6). Under section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), a 
child is defined as under 21 years of age and unmarried. Through these 
provisions, Congress has expressed an intent that special immigrant 
juvenile classification requires that the alien be under the age of 21 
only at the time of filing. See proposed 8 CFR 204.11(b)(1)(ii). The 
TVPRA 2008 prohibition would also require removal of existing 8 CFR 
205.1(a)(3)(iv)(A), which provides for automatic revocation of the 
petition of an alien who reaches the age of 21 prior to adjudication of 
an application for adjustment of status. It would be contrary to the 
purpose of the statute for Congress to bar denial of a petition because 
the petitioner aged out, yet permit USCIS to continue to revoke the 
classification automatically if the alien's subsequent application for 
adjustment

[[Page 54980]]

of status has not been adjudicated before the alien's 21st birthday.
 2. Unmarried
    Under existing regulations, a juvenile must remain unmarried both 
at the time the Form I-360 is filed and through adjudication in order 
to qualify for SIJ classification. 8 CFR 204.11(c)(2) and 
205.1(a)(3)(iv)(B). The proposed rule continues this approach, proposed 
8 CFR 204.11(b)(1)(iii), for the following reasons. Marriage alters the 
dependent relationship with the juvenile court and emancipates the 
child. Furthermore, no derivative benefits for spouses are provided 
under the SIJ statute. This omission suggests that Congress did not 
intend for married juveniles to be eligible for SIJ classification. See 
58 FR 42843-51 (1993). No legislative changes or intervening facts have 
caused USCIS to alter this provision. This interpretation, moreover, is 
consistent with Congress's use of the term ``child'' in its 
Transitional Rule provision of section 235(d)(6) of the TVPRA 2008.
    The TVPRA 2008 age-out protection preserves eligibility for SIJ 
status by precluding USCIS from denying SIJ classification based on age 
if the alien was a child on the date on which the alien petitioned for 
SIJ classification. TVPRA 2008 section 235(d)(6), 8 U.S.C. 1232(d)(6). 
This section of the TVPRA uses the term ``child,'' which is defined in 
section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), as a person who is 
under 21 years of age and unmarried. Section 235(d)(6) of the TVPRA 
2008 links the age-out prohibition specifically to age, by providing 
that SIJ status may not be denied ``based on age,'' but does not link 
the age-out protection to marital status. USCIS believes that Congress 
intended that SIJ classification require that the alien be under the 
age of 21 only at the time of filing, but that Congress did not intend 
a similar time-of-filing standard with respect to marital status. See 
proposed 8 CFR 204.11(b)(1)(iii).
3. Juvenile Court Dependency
    An alien seeking SIJ classification must have been declared 
dependent on a juvenile court located in the United States, or such a 
court must have legally committed the juvenile to, or placed him or her 
under the custody of, a State agency or department of a State, or an 
individual or entity appointed by a State or juvenile court. The term 
``juvenile court'' includes any court having jurisdiction to make 
judicial determinations about the custody and care of juveniles. The 
use of the term ``dependency'' throughout this proposed rule 
encompasses dependency, commitment, or custody as provided in amended 
section 101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i).
    Dependency, commitment, or custody must be in effect when the Form 
I-360 is filed and must continue through the time of adjudication, 
unless the age of the petitioner prevents such continuation. See 
Proposed 8 CFR 204.11(b)(1)(iv). State juvenile court age limitations 
on jurisdiction and dates of ``emancipation'' vary greatly from state 
to state. Eligibility for special immigrant juvenile classification, 
however, depends only in part on the findings of the State court, since 
USCIS retains the discretionary authority to grant, deny, or revoke SIJ 
classification. The proposed rule would ensure that juveniles who age 
out of State court dependency after filing the Form I-360 would remain 
eligible for SIJ classification. USCIS, therefore, would not deny SIJ 
classification to a juvenile with a valid dependency order at the time 
of filing if the dependency order is no longer in effect at the time of 
adjudication as a result of the petitioner's age or emancipation, other 
than emancipation by marriage, based on State law.
    Another context in which a petitioner may age out relates to 
relocation to another state. Jurisdiction over a juvenile by a state 
juvenile court typically ends upon the juvenile's relocation. For 
example, if an 18-year-old SIJ petitioner with a valid dependency order 
in one state relocates to another state, the petitioner might not be 
subject to the jurisdiction of the juvenile court in the new state 
because the new state deems age 18 to be the age of emancipation. Under 
the proposed rule, a juvenile who cannot obtain a new juvenile court 
dependency order because of age would remain eligible for SIJ 
classification so long as he or she meets all other applicable 
requirements. Proposed 8 CFR 204.11(b)(1)(iv) would not require 
dependency to continue through adjudication for petitioners in this 
situation.
    When an SIJ petitioner relocates to another state, the initial 
juvenile court dependency order will no longer be in effect because the 
juvenile will no longer be under the initial court's jurisdiction. The 
petitioner must therefore obtain a new dependency order. Despite the 
lapse between dependency orders, USCIS will consider dependency to have 
continued through the time of adjudication under proposed 8 CFR 
204.11(b)(1)(iv). USCIS recognizes that the calendaring of State court 
proceedings is beyond the petitioner's control and that a lapse between 
dependency orders based on relocation does not signify a change in the 
underlying facts on which special immigrant juvenile classification is 
based, but rather a technical transfer of jurisdiction that may be the 
cause of the lapse. USCIS, accordingly, will not consider a petitioner 
ineligible for SIJ classification due to a lapse in time between the 
two orders.
    Proposed 8 CFR 204.11(b)(2)(i) clarifies that a juvenile who is 
adopted or placed under guardianship is eligible for SIJ classification 
under amended section 101(a)(27)(J)(i) of the Act, 8 U.S.C. 
1101(a)(27)(J)(i). This section allows eligibility where a petitioner 
has been ``legally committed to, or placed under the custody of * * * 
an individual * * * appointed by a State or juvenile court located in 
the United States.'' Therefore, commitment to, or placement under the 
custody of an individual, can include adoption and guardianship.
4. Viability of Reunification Due To Abuse, Neglect, Abandonment, or a 
Similar Basis Under State Law
    An SIJ petitioner must additionally establish that reunification 
with one or both parents is not viable due to abuse, neglect, 
abandonment, or a similar basis found under State law. Section 
101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i). The proposed 
rule would require the juvenile to establish that he or she is the 
subject of a State court order determining that reunification with one 
or both parents is not viable for one of the reasons enumerated in 
section 101(a)(27)(J)(i). Determining the viability of reunification 
with one or both of a child's parents due to abuse, neglect, 
abandonment, or a similar basis under State law is a question that lies 
within the expertise of the juvenile court, applying relevant State 
law. See Proposed 8 CFR 204.11(b)(1)(v). Section 101(a)(27)(J)(i) of 
the Act previously required a State court determination of eligibility 
for long-term foster care due to abuse, neglect, or abandonment.
    The concepts of abuse, neglect, and abandonment are not defined in 
immigration law. Specific legal definitions of the terms ``abuse, 
neglect, or abandonment'' for the purposes of juvenile dependency 
proceedings derive from State law and therefore vary from state to 
state.
    For example, in California, ``abuse'' encompasses distinct 
definitions of physical abuse, neglect (including severe and general 
neglect), sexual abuse, and emotional abuse. The basic definition of 
child abuse or neglect includes physical injury inflicted by other than 
accidental means upon a child by another person; willful

[[Page 54981]]

harming or injury of the child or the endangering of the person or 
health of the child; and unlawful corporal punishment or injury. Cal. 
Penal Code sections 11165.3, 11165.6. In the District of Columbia, 
however, ``physical child abuse'' refers to infliction of physical or 
mental injury upon the child and sexual abuse or exploitation of a 
child. The law also specifies which acts are considered abusive and, 
therefore, do not constitute mere ``discipline.'' DC Code Ann. section 
16-2301.
    In New York, a child is deemed ``abandoned'' if a parent shows ``an 
intent to forego his or her parental rights and obligations as 
manifested by his or her failure to visit the child and communicate 
with the child or agency, although able to do so and not prevented or 
discouraged from doing so by the agency.'' NY Soc. Serv. Law section 
384-b. Virginia law, by contrast, simply states, ``Abused or neglected 
child means any child less than age 18 whose parents or other person 
responsible for his or her care abandons such child.'' VA Code Ann. 
section 63.2-100. Thus, the language of the dependency orders varies 
based on individual State laws as well.
    If a juvenile court order includes a finding that reunification 
with one or both parents is not viable under State law, the petitioner 
must establish that this State law basis is similar to a finding of 
abuse, neglect, or abandonment. The petitioner has the burden of proof 
relating to the scope of the State law. The nature and elements of the 
State law must be similar to the nature and elements of abuse, 
abandonment, or neglect. This is a case-by-case determination because 
of the variations in State law.
    For example, under Connecticut law, a child may be found ``uncared 
for'' if the child is ``homeless'' or if his or her ``home cannot 
provide the specialized care that the physical, emotional or mental 
condition of the child requires.'' See Conn. Gen. Stat. Ann. section 
46b-120(9). ``Uncared for'' may be similar to abuse, abandonment, or 
neglect because children found ``uncared for'' are equally entitled to 
juvenile court intervention and protection. The outcomes for children 
adjudged ``uncared for'' are the same as they are for children adjudged 
abused, abandoned, or neglected. See Conn. Gen. Stat. Ann. section 46b-
120(8),(9); 121(a).
    Petitioners are encouraged to include copies of the State laws on 
abuse, abandonment, and neglect, or equivalent concepts as defined in 
the State, and the State definition for the basis on which the juvenile 
court has made its finding in order to more clearly meet their burden 
of proof. Additional evidence to establish the basis for a finding that 
reunification is not viable due to a similar basis found under State 
law may include:
     Evidence that shows the conduct that occurred and any acts 
that led to the victimization of the petitioner (this may be contained 
in the court order itself);
     Other findings from the court;
     Evidence of how a child subject to a finding under State 
law is treated similarly by the State, for example is eligible for the 
same programs, as a child who has been adjudicated abused, abandoned or 
neglected;
     Opinions or letters from social workers, victim advocates, 
medical professionals, and others who work with the juvenile; and
     Affidavits of the petitioner, other witnesses or those who 
know the juvenile.
5. Determination of ``Best Interest''
    The State judicial or administrative proceedings must additionally 
determine, under applicable State law, that it would not be in the 
alien's best interest to be returned to the country of nationality or 
last habitual residence of the alien or of his or her parents. Congress 
has not altered these requirements, and this proposed rule would 
continue the existing requirement. Typically, the juvenile court order 
itself will include this finding. This finding, however, can be made in 
any State judicial or administrative proceeding. See current 8 CFR 
204.11(c)(6) and proposed 8 CFR 204.11(b)(1)(vi).

B. Consent Requirements

1. DHS Consent to the Grant of SIJ Classification
    All petitioners for SIJ classification must obtain the consent of 
the Secretary of Homeland Security to the SIJ classification. Section 
101(a)(27)(J)(iii) of the Act, 8 U.S.C. 1101(a)(27)(J)(iii), as 
amended; see proposed 8 CFR 204.11(c)(1). Consent to the dependency 
order was historically a precondition to granting special immigrant 
juvenile classification. Section 235(d)(1)(B) of TVPRA 2008, however, 
replaced that precondition with the requirement that the Secretary 
consent to the SIJ classification itself. This proposed rule provides 
that consent will be granted to otherwise eligible SIJ petitioners 
where the qualifying State court order was sought primarily for the 
purpose of obtaining relief from abuse, neglect, abandonment, or some 
similar basis under State law, and not primarily for the purpose of 
obtaining lawful immigration status. See proposed 8 CFR 
204.11(c)(1)(i). This policy is consistent with congressional intent in 
creating the consent function. See H.R. Rep. No. 105-405, at 130 (1997) 
(noting that the language of the statute was modified to limit the SIJ 
provisions to those for whom it was created by requiring a 
determination that neither the dependency order nor the judicial 
determination of best interest was sought primarily to obtain an 
immigration benefit, rather than relief from abuse, abandonment or 
neglect). The proposed rule clarifies that the approval of a Form I-360 
is evidence of the Secretary's consent, rather than consent being a 
precondition of the juvenile court order. See proposed 8 CFR 
204.11(c)(1)(iii). The removal of consent to the juvenile court order 
as a statutory precondition renders two separate decisions by USCIS 
unnecessary and redundant.
    The petitioner bears the burden of proving that the State court 
order was sought primarily for the purpose of obtaining relief from 
abuse, neglect, abandonment, or some similar basis under State law. 
Evidence can include information about the juvenile court proceedings 
such as a dependency or guardianship order, findings accompanying the 
order, actual records from the proceedings, or other evidence that 
summarizes the evidence presented to the court. Dependency orders that 
include or are supplemented by specific findings of fact regarding the 
basis for a finding of abuse, neglect, abandonment, or some similar 
basis under State law are usually sufficient to provide a basis for the 
Secretary's consent. Orders lacking specific factual findings generally 
are not sufficient to provide a basis for consent, and must be 
supplemented by separate findings or any other relevant evidence 
establishing the factual basis for the order.
    Evidence can also include information from persons who know the 
petitioner in a personal or professional manner. This evidence could 
include, but is not limited to, affidavits, letters, evaluations, or 
treatment plans from the court, State agency, department, or individual 
with whom the juvenile has been placed, health care professionals, 
social workers, others with responsibility to evaluate and treat the 
juvenile, attorneys, guardians, adoptive parents, family members, and 
friends.
    USCIS may seek or consider additional relevant evidence if the 
evidence presented is not sufficient to establish a reasonable basis 
for consent. USCIS may request additional evidence

[[Page 54982]]

from the petitioner in such cases. Moreover, USCIS may consider any 
evidence of the role of a parent or other custodian in arranging for a 
petitioner to travel to the United States or to petition for SIJ 
classification. See Yeboah v. U.S. Dep't of Justice, 345 F.3d 216 (3d 
Cir. 2003). If USCIS determines that the State court order is sought 
primarily to obtain lawful immigration status, USCIS will deny consent.
2. Specific Consent of HHS
    TVPRA 2008 vested custody of unaccompanied alien children, who are 
often petitioners for SIJ classification, with the Secretary of Health 
and Human Services rather than the Secretary of Homeland Security. In 
addition, TVPRA 2008 simplified the language to refer simply to 
``custody,'' in contrast to the previous ``actual or constructive 
custody'' language.
    No juvenile court has jurisdiction to determine the custody status 
or placement of an alien in the custody of the Secretary of Health and 
Human Services unless the Secretary of Health and Human Services 
specifically consents to such jurisdiction. Section 
101(a)(27)(J)(iii)(I) of the Act, 8 U.S.C. 1101(a)(27)(J)(iii)(I). A 
juvenile in the custody of the Department of Health and Human Services 
(HHS) is required to obtain specific consent from HHS to a State court 
order modifying custody status or placement prior to filing a petition 
for SIJ classification. See proposed 8 CFR 204.11(c)(2). The specific 
consent requirement was introduced by the 1998 Appropriations Act and 
amended by TVPRA 2008.
    An SIJ petitioner who is in the custody of HHS must now seek 
specific consent from HHS if he or she seeks a juvenile court order 
that would determine or alter his or her custody status or placement. 
The SIJ petitioner is not required to obtain specific consent from HHS 
if the juvenile court order makes no findings as to custody status or 
placement. Where required, an SIJ petitioner must submit evidence of an 
HHS grant of specific consent when filing a petition for SIJ 
classification with USCIS.

C. Application Process

    An alien must file Form I-360, Petition for Amerasian, Widow(er), 
or Special Immigrant, to petition for SIJ classification under section 
101(a)(27)(J) of the Act, 8 U.S.C. 1101(a)(27)(J). All petitioners for 
SIJ classification must submit all required initial evidence, and 
supporting documentation, with the Form I-360. See 8 CFR 103.2(b)(1) 
and proposed 8 CFR 204.11(d).
    This proposed rule would amend what constitutes acceptable 
supporting documentation or initial evidence that must accompany the 
Form I-360. See proposed 8 CFR 204.11(d). The proposed rule would 
require the following initial evidence, which may be contained in one 
document or in several documents:
     Form I-360, completed in accordance with the instructions 
on the form;
     Evidence of the alien's age, such as a birth certificate, 
passport, official foreign identity document issued by a foreign 
government, or other document which, in the discretion of USCIS, 
establishes the alien's age;
     Biometrics as provided in the instructions on the form;
     A juvenile court order, issued by a court of competent 
jurisdiction located in the United States, showing that the court has 
found the juvenile to be dependent upon that court or that the court 
has legally committed the juvenile to, or placed the juvenile under the 
custody of, an agency or department of a State or an individual or 
entity appointed by a State or juvenile court;
     Specific findings of fact or other relevant evidence, 
either incorporated into the court order or separate from the order, 
establishing that reunification with one or both parents was deemed not 
viable due to abuse, neglect, abandonment, or a similar basis under 
State law. If the evidence includes a finding that reunification is not 
viable due to a similar basis under State law, the petitioner must 
establish that such a basis is similar to a finding of abuse, neglect, 
or abandonment;
     Evidence of a determination made in judicial or 
administrative proceedings, under applicable State law, that it would 
not be in the juvenile's best interest to be returned to the country of 
nationality or last habitual residence of the juvenile or of his or her 
parent(s); and
     If a juvenile is in HHS custody and obtained a juvenile 
court order that determined or altered his or her custody status or 
placement, evidence that HHS granted specific consent to the new 
custody status or placement ordered by the court.

USCIS may obtain initial or additional supporting evidence, documents, 
or materials directly from a court, government agency, or other 
administrative body in either paper or electronic format.
    The Application to Register Permanent Residence or Adjust Status, 
Form I-485, is used by SIJ petitioners to apply for related adjustment 
of status to that of a permanent resident, either concurrently with or 
subsequent to filing Form I-360. Where possible, USCIS encourages 
concurrent filing of Form I-485 and Form I-360.

D. Adjudication and Post-Adjudication

1. Interview Process
    USCIS may interview the petitioner for purposes of adjudicating the 
Form I-360 petition. 8 CFR 103.2(b)(9). USCIS has discretion to 
determine whether an interview is necessary. The determination not to 
interview may apply when an SIJ petitioner files Form I-360 alone, 
without an accompanying Form I-485. See proposed 8 CFR 204.11(e). USCIS 
will consider such factors as the age of the juvenile, the sensitive 
nature of issues of abuse, neglect, or abandonment involved in the 
case, and whether the USCIS officer expects to gather additional 
relevant evidence at an interview. In some instances, an officer may 
require information that can only be provided by the juvenile or a 
person acting on the juvenile's behalf, such as when a petition is 
missing information or the juvenile has a criminal record.
    USCIS seeks to establish a nonthreatening interview environment 
that would promote an open, productive discussion about the SIJ 
petition. Juveniles seeking SIJ classification, unlike other juveniles, 
are under specific pressures and hardships relating to the loss of 
parental support and to juvenile court proceedings. The juvenile could 
bring a trusted adult (who is familiar with the juvenile and can be 
supportive), in addition to an attorney or representative (at no 
expense to the Government). The trusted adult or the attorney may 
present a statement at the end of the interview. The interviewing 
officer may, in his or her discretion, limit the length of such 
statement or comment and may require its submission in writing. USCIS 
still maintains discretion to interview a child separately when 
necessary. Generally, in the context of the SIJ interview, it is not 
necessary to interview a juvenile (whether alone or accompanied) about 
the facts regarding the abuse, neglect, or abandonment upon which the 
dependency order is based. However, USCIS retains the discretion to 
interview the juvenile.
    USCIS cannot compel an SIJ petitioner to contact the alleged abuser 
or family members of the alleged abuser at any point during the 
petition or interview process. INA section 287(h), 8 U.S.C. 1357(h), 
proposed 8 CFR 204.11(f).

[[Page 54983]]

    As a general rule, USCIS must interview any applicant for 
adjustment of status, regardless of the underlying status and how the 
applicant is adjusting status to lawful permanent resident. 8 CFR 
245.6. This general interview requirement for all adjustment of status 
applications also applies to SIJ petitioners. It applies when, as is 
most often the case, an SIJ petitioner files the Form I-360 
concurrently with the Form I-485. It also applies when USCIS grants a 
Form I-360 filed separately, and then the SIJ petitioner files a Form 
I-485.
    Although the general interview requirement does apply to SIJ 
petitioners, USCIS does have discretion to waive an adjustment of 
status interview for SIJ petitioners. USCIS may waive an interview in 
the case of a child under the age of 14, or where USCIS determines on a 
case-by-case basis that an interview is not necessary. See 8 CFR 245.6. 
USCIS will review the underlying Form I-360 (if not already approved) 
and the Form I-485 during the interview and will generally provide 
safeguards outlined above regarding interviews for SIJ classification.
2. Decisions
    TVPRA 2008 contained a provision for expeditious adjudication of 
SIJ petitions within 180 days. See TVPRA 2008 section 235(d)(2), 8 
U.S.C. 1232(d)(2). USCIS intends to adhere to the 180-day benchmark, 
taking into account general USCIS regulations pertaining to receipting 
of petitions, evidence and processing, and assuming the completeness of 
the petition and supporting evidence. Proposed 8 CFR 204.11(h); 8 CFR 
103.2. The 180-day timeframe begins when the SIJ petition is receipted, 
as reflected in the receipt notice sent to the SIJ petitioner. 8 CFR 
103.2(a)(7). If USCIS sends a request for initial evidence, the 180-day 
timeframe will start over from the date of receipt of the required 
initial evidence. 8 CFR 103.2(b)(10)(i). If USCIS sends a request for 
additional evidence, the 180-day timeframe will stop as of the date 
USCIS sends the request, and will resume once USCIS receives a response 
from the SIJ petitioner. 8 CFR 103.2(b)(10)(i). USCIS will not count 
delay attributable to the petitioner or his or her representative 
within the 180-day timeframe. USCIS interprets the 180-day timeframe to 
apply to adjudication of the Form I-360 petition for SIJ status only, 
and not to the Form I-485 application for adjustment of status. USCIS 
does not interpret the 180-day timeframe to mean that an unadjudicated 
petition at the end of the timeframe will be automatically approved.
3. Revocation
    Current 8 CFR 205.1(a)(3)(iv) provides conditions under which a 
grant of an underlying petition for SIJ classifica tion is 
automatically revoked during the period when a Form I-485 is pending, 
but before a decision on the Form I-485 becomes final. This proposed 
rule would alter this section consistent with TVPRA 2008.
    As noted above, USCIS cannot deny SIJ classification based on age 
if the alien was a child on the date on which the alien filed the 
petition. Current regulations, however, provide for automatic 
revocation of the underlying SIJ petition if the juvenile reaches the 
age of 21 or dependency on the juvenile court was terminated before the 
Form I-485 was adjudicated. 8 CFR 205.1(a)(3)(iv)(A) and (C). As 
discussed above, it would be contrary to the language and purpose of 
the amended statute to continue this automatic revocation. Accordingly, 
the proposed rule removes 8 CFR 205.1(a)(3)(iv)(A) and (C) because 
these grounds relate to a juvenile's age.
    The rule also proposes to modify the language at current 8 CFR 
205.1(a)(3)(iv)(D) to reflect current statutory language at section 
101(a)(27)(J)(i) of the Act, 8 U.S.C. 1101(a)(27)(J)(i), requiring 
automatic revocation of an approval of the Form I-360 if a court deems 
reunification with one or both parents a viable option. The proposed 
rule would not change the language of current 8 CFR 205.1(a)(3)(iv)(B) 
(revoking approval of the petition upon the marriage of the juvenile). 
As discussed above, Congress intended an SIJ petitioner to remain 
unmarried.
4. No Parental Rights
    The proposed rule references the statutory language at section 
101(a)(27)(J)(iii)(II) of the Act that parents cannot be accorded any 
right, privilege, or status under the Act. Proposed 8 CFR 204.11(g). 
USCIS interprets this provision to mean that any parent or prior 
adoptive parent cannot gain lawful status through the alien granted SIJ 
status, regardless of whether the alien goes on to become a permanent 
resident or even a United States citizen. When TVPRA 2008 added the 
language regarding the non-viability of reunification with one or both 
parents, Congress did not amend section 101(a)(27)(J)(iii)(II) of the 
INA to permit a non-abusive parent to gain any right, privilege, or 
status under the INA by virtue of the parental relationship. USCIS 
continues to interpret this language to apply to any parent or any 
prior adoptive parent, regardless of that parent's involvement in the 
abuse, abandonment or neglect.

E. Adjustment of Status

    As provided by the TVPRA 2008 amendments to section 245(h)(2)(A) of 
the Act, 8 U.S.C. 1255(h)(2)(A), SIJ adjustment of status applicants 
are exempt from four additional grounds of inadmissibility. The full 
list of exempted grounds of inadmissibility in proposed 8 CFR 
245.1(e)(3) would be modified to include:
     Public charge (section 212(a)(4) of the Act, 8 U.S.C. 
1182(a)(4));
     Labor certification (section 212(a)(5)(A) of the Act, 8 
U.S.C. 1182(a)(5)(A));
     Aliens present without inspection (section 212(a)(6)(A) of 
the Act, 8 U.S.C. 1182(a)(6)(A));
     Misrepresentation (section 212(a)(6)(C) of the Act, 8 
U.S.C. 1182(a)(6)(C));
     Stowaways (section 212(a)(6)(D) of the Act, 8 U.S.C. 
1182(a)(6)(D));
     Documentation requirements (section 212(a)(7)(A) of the 
Act, 8 U.S.C. 1182(a)(7)(A)); and
     Aliens unlawfully present (section 212(a)(9)(B) of the 
Act, 8 U.S.C. 1182(a)(9)(B)).
    The following grounds of inadmissibility cannot be waived:
     Conviction of certain crimes (section 212(a)(2)(A) of the 
Act, 8 U.S.C. 1182(a)(2)(A));
     Multiple criminal convictions (section 212(a)(2)(B) of the 
Act, 8 U.S.C. 1182(a)(2)(B));
     Controlled substance traffickers (section 212(a)(2)(C) of 
the Act, 8 U.S.C. 1182(a)(2)(C)) except for a single offense of simple 
possession of 30 grams or less of marijuana;
     Security and related grounds (section 212(a)(3)(A) of the 
Act, 8 U.S.C. 1182(a)(3)(A));
     Terrorist activities (section 212(a)(3)(B) of the Act, 8 
U.S.C. 1182(a)(3)(B));
     Foreign policy (section 212(a)(3)(C) of the Act, 8 U.S.C. 
1182(a)(3)(C)); and
     Participants in Nazi persecution, genocide, or the 
commission of any act of torture or extrajudicial killing (section 
212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E)).
    Under section 245(h)(2)(B) of the Act, 8 U.S.C. 1255(h)(2)(B), any 
other inadmissibility provision may be waived on an individual basis 
for humanitarian purposes, family unity, or when it is otherwise in the 
public interest. The proposed rule amends 8 CFR 245.1(e)(3) 
accordingly.

[[Page 54984]]

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    DHS has reviewed this proposed rule in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and, by approving it, 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities because it affects only 
individuals, who are not small entities as defined by 5 U.S.C. 601(6). 
There are no costs added by this rule and no change in any process as a 
result of this proposed rule that would have a direct effect, either 
positive or negative, on a small entity.

B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

D. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget. An analysis of the costs and benefits 
of this rule has been prepared and submitted to OMB for review as 
required by the Executive Order. The results of that analysis are as 
follows.
    This rule proposes several changes to the SIJ program that are 
necessary to bring the regulations into conformity with statutory 
requirements and agency practice. No additional regulatory compliance 
requirements will be added that will cause a detectable change in costs 
for petitioning individuals. In addition, this rule is expected to 
result in no changes in program costs for the government. 
Qualitatively, this proposed rule would codify the practices and 
procedures currently implemented via internal policy directives issued 
by USCIS. This rule would establish clear guidance for petitioners and 
applicants regarding the procedural and interpretative issues raised 
following statutory amendments.
    In fiscal year 2009, USCIS received 1,484 SIJ petitions; in 2008 
USCIS received 1,361 petitions; in 2007 USCIS received 739 petitions; 
and in 2006 USCIS received 541 petitions. In fiscal year 2009, USCIS 
approved 1,212 SIJ petitions; in 2008 USCIS approved 697 petitions; in 
2007 USCIS approved 521 petitions; and in 2006 USCIS approved 389 
petitions. It does not follow that USCIS denied the remainder of 
petitions filed in each fiscal year. These approval numbers do not take 
into account cases that, by the end of the fiscal year, were only 
initially receipted, awaiting response on a Request for Further 
Evidence, still pending, transferred, or rejected. The approval numbers 
may also include petitions filed in a previous fiscal year. According 
to the DHS Office of Immigration Statistics, in fiscal year 2008, 989 
SIJs adjusted status to permanent resident; in fiscal year 2007 772 
SIJs adjusted status to permanent resident; and in fiscal year 2006, 
894 SIJs adjusted status to permanent resident. The volume of petitions 
for SIJ classification is not expected to change significantly as a 
result of this proposed rule if finally promulgated and, therefore, the 
burden of compliance both in time and fees will not increase above that 
currently imposed.
    USCIS funds the cost of processing applications and petitions for 
immigration and naturalization benefits and services, and USCIS' 
associated operating costs, by charging and collecting fees. USCIS has 
determined, under its discretionary fee setting authority, however, 
that no fee should be charged for filing Form I-360, Petition for 
Amerasian, Widow(er), or Special Immigrant, filed by petitioners 
seeking SIJ classification. See 8 CFR 103.7(b)(1). These petitioners 
are subject to dependency orders of a State court and are not able to 
pay the filing fee for adjudication of the special immigrant juvenile 
petition. USCIS believes that these limited numbers of juvenile 
petitioners should be exempt from fees in the same manner as asylees 
under INA section 286(m), 8 U.S.C. 1356(m).
    Most petitioners seeking SIJ classification will also file a Form 
I-485, Application to Register Permanent Residence or Adjust Status, 
with a current $985 fee, and Form I-601, Application for Waiver of 
Ground of Inadmissibility, with a current $585 fee. SIJ petitioners who 
cannot afford the fees for Forms I-485 or I-601 may request a waiver of 
the fees. The respective fees are not affected by this rule.
    The fee impacts of this rule on each SIJ petitioner as well as on 
USCIS are neutral because USCIS estimates that filings for SIJ 
classification will continue at about the same volume as they have in 
the relatively recent past.

E. Executive Order 13132 (Federalism)

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, USCIS has determined that this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Family Assessment

    This regulation may affect family well-being as that term is 
defined in section 654 of the Treasury General Appropriations Act, 
1999, Public Law 105-277, Div. A. This action has been assessed in 
accordance with the criteria specified by section 654(c)(1). This 
regulation will enhance family well-being by enabling juvenile aliens 
who have been abused, neglected, or abandoned and placed in State 
custody by a juvenile court to obtain special immigrant classification. 
Such classification will enable these juveniles to be placed into more 
stable, permanent home environments and release them from reliance on 
their

[[Page 54985]]

abusers. Statutory mandate prevents the granting of immigration 
benefits to the abusive parent of an SIJ. 8 U.S.C. 
1101(a)(27)(J)(iii)(II). This classification will also encourage 
reporting of abuse to the authorities for appropriate legal action.

H. Paperwork Reduction Act (PRA)

    On June 25, 2009, USCIS published a 60-day notice in the Federal 
Register requesting comments on the revised Form I-360 that included 
the SIJ provisions required by Public Law 105-119, Public Law 109-162, 
and Public Law 110-457. 74 FR 30312. The one comment that USCIS 
received on the revised form did not relate to the SIJ provisions but 
rather was a suggestion to break up the Form I-360 into separate forms 
for SIJ and religious workers. USCIS responded to the commenter 
directly, advising him that creating a new form solely for religious 
workers and SIJs would require modification to the established 
electronic systems that would be extremely cumbersome and costly at 
this time. On September 8, 2009, USCIS published a 30-day notice in the 
Federal Register requesting further comments on the revised form. USCIS 
did not receive any further comments. 74 FR 46216.
    On December 30, 2009, the Office of Management and Budget approved 
the revised Form I-360 in accordance with the PRA. The approved OMB 
Control No. is 1615-0020.

List of Subjects

8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and 
recordkeeping requirements.

8 CFR Part 205

    Administrative practice and procedures, Aliens, Immigration, 
Petitions.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 204--IMMIGRANT PETITIONS

    1. The authority citation for part 204 is revised to read as 
follows:

    Authority:  8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1232, 1255; 8 CFR Part 2.

    2. Section 204.11 is revised to read as follows:


Sec.  204.11  Special immigrant classification for certain aliens 
declared dependent on a juvenile court (Special Immigrant Juvenile).

    (a) Definitions. As used in this section, the terms:
    Juvenile court means any court located in the United States having 
jurisdiction to make judicial determinations about the custody and care 
of juveniles.
    Petition means Form I-360, Petition for Amerasian, Widow(er), or 
Special Immigrant, or a successor form as may be prescribed by DHS.
    State includes an Indian tribe, tribal organization, or tribal 
consortium, operating a program under a plan approved under 42 U.S.C. 
671.
    (b) Eligibility. (1) An alien is eligible for classification as a 
special immigrant under section 101(a)(27)(J) of the Act if he or she:
    (i) Is physically present in the United States;
    (ii) Is under 21 years of age at the time of filing;
    (iii) Is unmarried;
    (iv) Has been declared dependent on a juvenile court or has been 
legally committed to or placed under the custody of a State agency or 
department or an individual or entity appointed by a State or juvenile 
court. Such dependency, commitment, or custody must be in effect at the 
time of filing and continue through the time of adjudication, unless 
the age of the petitioner prevents such continuation.
    (v) Is the subject of a State or juvenile court determination, 
under applicable State law, that reunification with one or both parents 
is not viable due to abuse, neglect, abandonment, or a similar basis 
under State law;
    (vi) Has been the subject of judicial proceedings or administrative 
proceedings in which it has been determined, under applicable State 
law, that it would not be in the alien's best interest to be returned 
to the country of nationality or last habitual residence of the alien 
or his or her parent(s); and
    (vii) Obtains consent from the Secretary of Homeland Security to 
classification as a special immigrant juvenile.
    (2) For the purposes of establishing classification as a special 
immigrant juvenile, a juvenile who has been adopted or placed under 
guardianship after having been found dependent upon a juvenile court in 
the United States, or having been committed to or placed under the 
custody of a State agency or department or an individual or entity 
appointed by a State or juvenile court, is considered eligible for SIJ 
classification. Commitment to or placement under the custody of an 
individual can include adoption and guardianship.
    (c) Consent. (1) Every alien must obtain the consent of the 
Secretary of Homeland Security to the classification as a special 
immigrant juvenile.
    (i) In determining whether to provide consent to classification as 
a special immigrant juvenile as a matter of discretion, USCIS will 
consider, among other permissible discretionary factors, whether the 
alien has established, based on the evidence of record, that the State 
court order was sought primarily to obtain relief from abuse, neglect, 
abandonment, or a similar basis under State law and not primarily for 
the purpose of obtaining lawful immigration status; and that the 
evidence otherwise demonstrates that there is a bona fide basis for 
granting special immigrant juvenile status.
    (ii) The alien has the burden of proof to show that discretion 
should be exercised in his or her favor.
    (iii) Approval by USCIS of the SIJ petition also will constitute 
the granting of consent on behalf of the Secretary.
    (2) An alien in the custody of the Department of Health and Human 
Services, who seeks a juvenile court order determining or altering the 
alien's custody status or placement, must obtain specific consent from 
the Secretary of Health and Human Services to the State court's 
jurisdiction to determine or alter custody status prior to filing the 
SIJ petition with USCIS.
    (d) Petition procedures. The alien, or an adult acting on the 
alien's behalf, may file the petition for special immigrant juvenile 
classification. Each individual requesting special immigrant juvenile 
classification must submit:
    (1) A Petition completed in accordance with the instructions on the 
form;
    (2) Evidence of the alien's age; and
    (3) One or more documents which reflect the following:
    (i) A juvenile court order, issued by a court of competent 
jurisdiction located in the United States, showing that the court has 
found the juvenile to be dependent upon that court, or that the court 
legally committed the juvenile to, or placed the juvenile under the 
custody of, a State agency or department, or an individual or entity 
appointed by a State or juvenile court;
    (ii) Specific findings of fact or other relevant evidence, either 
incorporated into the court order or separate from the order, 
establishing the basis for a finding that reunification with one or 
both parents is not viable due to abuse, neglect, abandonment, or a 
similar basis found under State law; and

[[Page 54986]]

    (iii) Evidence of a determination made in judicial or 
administrative proceedings, under applicable State law, that it would 
not be in the juvenile's best interest to be returned to the country of 
nationality or last habitual residence of the juvenile or of his or her 
parent(s).
    (4) If a juvenile is in the custody of the Secretary of Health and 
Human Services and obtained a juvenile court order that determined or 
altered the custody status or placement of the juvenile, evidence that 
the Secretary of Health and Human Services granted specific consent.
    (e) Interview. In accordance with 8 CFR 103.2(b) and 245.6, 
although an interview is not a prerequisite to the adjudication of a 
Special Immigrant Juvenile petition, USCIS may require an interview as 
a matter of discretion.
    (1) The SIJ petitioner may be accompanied by a trusted adult, in 
addition to an attorney or representative, at the interview. USCIS, in 
its discretion, may place reasonable limits on the number of persons 
who may be present at the interview.
    (2) The trusted adult or attorney or representative may present a 
statement at the end of the interview. USCIS, in its discretion, may 
limit the length of such statement or comment and may require its 
submission in writing.
    (f) No contact. USCIS will not compel an SIJ petitioner to contact 
the alleged abuser or family members of the alleged abuser at any time 
during the petition or interview process.
    (g) No parental rights. No natural or prior adoptive parent of any 
alien with an approved Special Immigrant Juvenile petition shall, by 
virtue of such parentage, be accorded any right, privilege, or status 
under the Act. This prohibition remains in effect even after the alien 
becomes a lawful permanent resident or a United States citizen.
    (h) Timeframe. USCIS will adjudicate a petition for Special 
Immigrant Juvenile classification within 180 days of receipt of a 
properly filed petition. The date of receipt will be as provided in 8 
CFR 103.2(a)(7). A request for required initial evidence from USCIS to 
the petitioner or a request from the petitioner for rescheduling of 
biometrics or an interview will restart the 180-day timeframe. Any 
request for additional evidence will suspend the timeframe as of the 
date of the request up until the date the requested evidence, response, 
or a request for a decision based on the evidence already provided is 
received. Any delay requested or caused by the applicant will not be 
counted as part of the 180-day adjudication period.

PART 205--REVOCATION OF APPROVAL OF PETITIONS

    3. The authority citation for part 205 continues to read as 
follows:

    Authority:  8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 
and 1186a.

    4. Section 205.1 is amended by:
    a. Removing paragraph (a)(3)(iv)(A);
    b. Removing paragraph (a)(3)(iv)(C);
    c. Redesignating paragraphs (a)(3)(iv)(B), (D) and (E) as 
paragraphs (a)(3)(iv)(A), (B) and (C) respectively; and by
    d. Revising newly redesignated paragraph (a)(3)(iv)(B).
    The revision reads as follows:


Sec.  205.1  Automatic revocation.

    (a) * * *
    (3) * * *
    (iv) * * *
    (B) Upon reunification of the beneficiary with one or both parents 
by virtue of a juvenile court order, where a juvenile court previously 
deemed reunification with that parent, or both parents, not viable due 
to abuse, neglect, or abandonment; or
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

    5. The authority citation for part 245 continues to read as 
follows:

    Authority:  8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public 
Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277, 
112 Stat. 2681; Title VII of Public Law 110-229; 8 CFR part 2.

    6. Section 245.1 is amended by revising paragraph (e)(3) to read as 
follows:


Sec.  245.1  Eligibility.

* * * * *
    (e) * * *
    (3) Special immigrant juveniles. Any alien qualified for special 
immigrant classification under section 101(a)(27)(J) of the Act shall 
be deemed, for the purpose of section 245(a) of the Act, to have been 
paroled into the United States, regardless of the alien's actual method 
of entry into the United States. Neither the provisions of section 
245(c)(2) of the Act nor the inadmissibility provisions of sections 
212(a)(4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), or (9)(B) of the Act 
shall apply to any alien qualified for special immigrant classification 
under section 101(a)(27)(J) of the Act. The inadmissibility provisions 
of sections 212(a)(2)(A), (2)(B), (2)(C) (except for a single offense 
of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), 
(3)(C), or (3)(E) of the Act may not be waived. Any other 
inadmissibility provision may be waived on an individual basis for 
humanitarian purposes, family unity, or when it is otherwise in the 
public interest. The relationship between the alien and the alien's 
natural parents or prior adoptive parents shall not be considered a 
factor in a discretionary waiver determination based on family unity.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2011-22625 Filed 9-2-11; 8:45 am]
BILLING CODE 9111-97-P