Special Immigrant Juvenile Visa or Adoption?

A common scenario I see in my office is that of a family who wants to help out with another family members children who are trying to flee a bad situation from a foreign country. The consultation usually begins with a question similar to this.

Question: Hello. I am a United States citizen and I live here in San Antonio. Most of my family is from another country and still resides there. My sister lives in a dangerous area of that country. Recently her husband disappeared. She does not know what happened to him but she believes he is not coming back. She feared for the lives of her two young children so she arranged for them to come to the United States to stay with me. The children, ages 10 and 12, are here with me now and have been enrolled in school. They do not have legal status and they cannot apply for the dream deferred action program since they just recently arrived. Is there anything I can do for them to become legal?

I can think of two ways to help the children gain legal status, but this is a complex situation that will require the assistance of a well-qualified attorney familiar with Immigration and Family law. The two options that come to mind are 1) adoption and 2) special immigrant juvenile visas.

You adopting the children might work, but it depends on several factors. Adoptions must be completed in a way that satisfies all the requirements of Immigration law. When a United States citizen adopts a child from another country, there are several additional requirements that must be met. There will be major problems when it is time to apply for Immigration status if these requirements are not met. You will probably be able to find a family law attorney that can assist you in adopting the child. But you must be very careful and make sure the family law attorney is aware that your true goal is for the children to obtain legal Immigration status. It is possible, and I have seen it several times, for a foreign child to be legally adopted through Texas State laws, but then later have Immigration deny the petition because the adoption was not completed properly.

Another option for the children is to apply for a special immigrant juvenile visa. To qualify for this type of visa a Texas Court must: 1) declare that the children are dependent upon the Court or place them in your custody; 2) find that the children cannot be reunited with one or both parents because of abuse, neglect, or abandonment; and 3) find that it is the best interests of the children not to return to their home country. The children in your case sound like they fit well in this category since their father has disappeared and you stated that it is dangerous in their home country. Once you get the order from the Texas Court, the children can then go to Immigration and apply for a special immigrant juvenile visa and obtain their lawful permanent resident status.

There is another important aspect that applies to both the adoption and the special immigrant juvenile visa. If the children gain their resident status through either of these two ways, they will no longer be able to petition for their biological mother in the future.

These types of cases are very complicated and require the assistance of attorneys that are familiar with Immigration and Family law. Be sure to seek the advice of a qualified attorney and make sure you ask lots of questions.

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