INDIA JOINS BACKLOG OF VISAS FOR SIJS STARTING AUGUST 1, 2016

Special Immigrant Juvenile Status (SIJS) is a type of immigration relief available to minors under the age of 21 who are in need of protection due to the abuse, neglect or abandonment of at least one parent. See 8 U.S.C. § 1101(a)(27)(J). A qualified minor can apply for lawful permanent residence (green card) upon establishing that: (1) the applicant is under 21 years old; (2) unmarried; (3) has been declared dependent upon a court having jurisdiction over the minor and (4) that reunification with one or both of the applicant’s parents is not viable. See INA § 101(a)(27)(J).

Applications for lawful permanent residency based on SIJS are subject to the visa allotment under the Employment Based Fourth Preference category (EB4). Around 10,000 green cards are available each year to all categories of special immigrants, which include not only juveniles but religious workers and various other categories authorized in statute. In addition, there is a specific per country cap. Under immigration law, no country can use up more than 7 percent of the total visas available in a fiscal year in any category.

This once obscure form of relief has seen an increase in applications following the surge of Central American children coming to the U.S. to escape increasing levels of violence in their countries. Since 2014, thousands of unaccompanied minors have entered the U.S. from Honduras, Guatemala and El Salvador. The surge caused many non-profits organizations to come to the rescue of these children by filing SIJS petitions.

In May of 2016, USCIS announced that the EB4 visa cap for the current fiscal year had been reached. This announcement sent shockwaves through the legal community that deals mostly with this population. Up to this point, few practitioners knew there was a specific cap per country for any fiscal year. In June, USCIS announced that the cap for Mexico had been reached as well. India now joins the list.

On July 11, 2016, USCIS announced that the visa allotment for India had been reached for the current fiscal year 2016. USCIS further announced that as of August 1, 2016, applicants from India who filed form I-360, Petition for Special Immigrant Juvenile, will not be able to obtain an immigrant visa or adjust status until new visas become available. Accordingly, USCIS will not accept I-485 Adjustment of Status applications based on I-360 SIJS petitions filed on or after January 1, 2010 starting on August 1, 2016. By making the announcement on July 11, USCIS is in fact granting a grace period in which to file SIJ Adjustment petitions before the cap is enforced.

Fiscal year 2017 starts on October 1, 2016. Information on EB4 visa availability will appear in the Department of State’s October Visa Bulletin.

 

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