Meeting the Citizenship and Immigration Needs of Foster Children

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Why does a child’s immigration and citizenship status matter so much? An undocumented child is unable to work legally, obtain student loans or qualify for most government benefits, and lives with the threat of deportation.

Faced with these circumstances, living on the margins is inevitable. Even lawful permanent residents (holders of a “green card”) are restricted from accessing many government benefits.¹  Only by obtaining U.S. citizenship can a child or youth avoid immigration-based restrictions on access to public benefits. For most undocumented children, U.S. citizenship is only possible after first obtaining lawful permanent resident (LPR) status.

Identifying Citizenship and Immigration Status

Only by identifying all children by citizenship and immigration status can you find those who need citizenship and immigration help. This process is reasonably straightforward (and promotes compliance with Title IV-E verification requirements for state agencies).²  

Nearly all children in foster care will have the basic documents to quickly confirm status as a U.S. citizen, lawful permanent resident, or other type of qualified alien, as outlined below. Once that is accomplished, the spotlight will be on the remaining children, who can be identified as having undetermined status. These children either have a more complex citizenship or immigration history that requires further research, or they may have no legal status in the U.S. This group is the first priority for citizenship and immigration assistance.

If a child or youth has a citizenship or immigration document that is not clearly recognizable, the child should be placed in the undetermined status category to ensure research is done to determine the child’s true status. If a child is mistakenly categorized, important citizenship and immigration issues may be overlooked.

The identification process works as follows:

U.S. Citizen

A child with a U.S. birth certificate, naturalization or citizenship certificate, or a U.S passport is a U.S. citizen. While the list of possible documents to prove U.S. citizenship is long,³ most U.S. citizens will have one of these documents. A child with any other documentation of U.S. citizenship should be placed in the undetermined status category, so the case can be researched before the child is designated as a U.S. citizen.

Lawful Permanent Resident (LPR)

A child with a permanent resident card (I-551 or “green card”) is a lawful permanent resident. 

Other Qualified Alien

“Qualified alien” is a welfare reform term that refers to foreign-born persons admitted to the U.S. who are eligible for certain government benefits.⁴ LPR’s are one type of qualified alien, but the other qualified alien category is for those children who do not yet have LPR status. The most common foster children and youth in this very small category are refugees, but persons granted asylum or withholding of deportation, Cuban or Haitian entrants, and parolees are also included.

Other qualified aliens will usually have either a stamp in a foreign passport or an immigration form I-94 with the notation “refugee,” “political asylum,” or a similar reference. Again, if a child has an immigration document that is not readily recognizable, the child should be put in the undetermined status category so additional research can be done.

Undetermined Status

All children and youth who are not identified in one of the above three categories fall into the undetermined status category. Many children in this category will be undocumented, but not all. Some children will be U.S. citizens who were born abroad, whose parents may not realize the child is entitled to citizenship. Some children may have a certain status, but the requisite documents have been lost or were never obtained.

All children and youth in this category require ongoing efforts to identify and pursue whatever citizenship or immigration options are available. If a child in the undetermined status category is later confirmed to be a U.S. citizen, lawful permanent resident status is obtained, or other qualified alien status is confirmed, the child can be reclassified and placed in the appropriate category.

What Needs to Be Done?

Once a child or youth is categorized by citizenship or immigration status, it is easy to see what needs to be done in each case.

U.S. Citizen

If a child or youth is a U.S. citizen and has documentation to prove it, there is nothing to be done.

Lawful Permanent Resident (LPR)

A lawful permanent resident (LPR) can work legally, qualify for some government benefits and, barring commission of a serious criminal offense, cannot be removed (deported) from the U.S. 

It’s important to track the expiration date on a child’s LPR card. A permanent resident does not lose status if a card expires, but an application should be made to replace a card within the six months before the expiration date, or to obtain a new card if one is lost.⁵
If a youth has been a permanent resident for at least five years and is approaching age 18, it’s important to assess and discuss the option of obtaining U.S. citizenship by applying for naturalization. (See Naturalization, below).

Other Qualified Alien

The primary task for a child or youth in the other qualified alien category is to make sure an application for permanent resident status is filed if a child is eligible. Many immigrant advocacy groups focus on aiding refugees and others in this category and can assist with this process.

Undetermined

If a child or youth does not have the documentation for one of the first three categories, the first order of business is to get more information. The list,  “Questions to Ask about Foreign Born Foster Children,” below, is designed for this purpose.

If a child has a U.S. citizen parent, the possibility of U.S. citizenship should be carefully assessed (See Calling All Citizens, below). If a child has no immigration documents and no U.S. citizen parent, consider these options:

• Special Immigrant Juvenile Status (SIJS) petition
• Violence Against Women Act (VAWA) petition
• “T” or “U” nonimmigrant visa 

Excellent manuals detail eligibility and the application process for each of these remedies.⁶  The following overview orients child protection professionals to the general parameters of each option.

SIJS Spells Relief

The most common path to LPR status for undocumented foster children is to obtain Special Immigrant Juvenile Status (“SIJS”). The SIJS law permits eligible foster children to “self-petition” for a visa. One benefit afforded SIJS petitioners is the ability to “adjust status,” or obtain permanent resident status without returning to the home country for an interview at the U.S. consulate.⁷ An SIJS-eligible child can apply concurrently to adjust status and obtain permanent resident status, and a number of the inadmissibility grounds are waived for SIJS applicants. Although children not in a state foster care system can also benefit from SIJS, that is beyond the focus of this article.

Child Protection Court’s Role

Before a child can apply to the U.S. Citizenship & Immigration Services (“USCIS”)⁸ for SIJS, a juvenile court (or other court with jurisdiction under state law to make determinations about the custody and care of juveniles⁹  must make three findings relating to dependency, reunification, and best interests.¹⁰  A sample motion and order with the required findings can be found in a SIJS manual.¹¹

Dependent/Custody

The first finding the court must make concerns the status of the child before the court. The court must find the child “has been declared dependent on a juvenile court” or has been placed by such court “under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court….”¹²  This finding is not usually difficult to obtain because almost invariably every foster child has been the subject of such a court order.

Reunification

The second finding the court must make is a bit more complex. The court must also find that “reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, or abandonment, or a similar basis found under State law.”¹³  It is also generally true that a court has found every child in foster care to have been abused, neglected, or abandoned.  The more challenging question is whether reunification with one or both parents is not viable as a result of abuse, neglect, or abandonment.

When the SIJS law was enacted, it required that a court find a child was “eligible for long-term foster care,” which was interpreted to mean that family reunification is not viable.¹⁴  Changes to the SIJS law made as part of the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”) expanded the statute to permit SIJS where reunification with one or both parents is not viable.¹⁵  With this change, SIJS is potentially available much earlier in a child protective services case, because as soon as reunification with one parent is not viable, a child may be eligible for SIJS.

One common misunderstanding is that parental rights must be terminated or a permanent custody order must be entered for a court to make a finding that reunification is not viable. While either of those circumstances would support a finding that reunification is not viable, with sufficient evidence a court can make this finding at any juncture in a child protection lawsuit. The exact contours of the SIJS remedy, as amended by the TVPRA, won’t be clear until new regulations are finalized and more guidance is released.¹⁶  For now, if facts suggest reunification is not viable for at least one parent as a result of abuse, neglect, or abandonment, SIJS should be considered for an undocumented child.

Best Interests

The last of the three findings the family court must make is that it is not in the child’s best interest to return to the parent or child’s country of nationality or “last habitual residence.”¹⁷ If repatriation and placement in the home country is feasible for a child, ideally that goal is identified early in a case. Evidence of a lack of any family or other potential placement in the home country, a child’s inability to speak the language, acculturation and ties in the U.S., or special medical or other needs that cannot be met in the home country can all support a best interest finding.

There is rarely controversy about a family court SIJS order, but it is sometimes important to lay the groundwork if the court is not familiar with the SIJS process.  One key point is that by signing a SIJS order, the family court order does not confer any immigration status. The family court order is a prerequisite to SIJS relief, but immigration authorities determine if SIJS or permanent resident status is granted. Everyone (including a youth old enough to participate in the discussion) should also be aware that, unlike most immigrants, SIJS immigrants are barred from filing a visa petition for a parent in the future.¹⁸  This is not usually a serious drawback for a child without other immigration options, but is something to know.

Consent

Eligibility for SIJS also requires one of two forms of statutory consent depending on whether a child or youth was in federal custody before entering foster care.

Child in Federal Custody

In the fairly rare circumstance that a child in state custody is already in federal custody and a child protection court seeks to alter the child’s custody or placement, the Secretary of Health and Human Services (HHS) must consent to the state court’s jurisdiction. The procedure for requesting consent is detailed in a policy memo from the Administration for Children and Families.¹⁹

Bona Fide SIJS Case

In all other cases, consent is construed to be “an acknowledgement that the request for SIJS classification is bona fide;” it is not requested primarily to obtain immigration relief, but for relief from abuse, neglect, or
abandonment.²⁰ 

This consent requirement highlights a controversy over the role of immigration authorities adjudicating SIJS cases. USCIS adjudicators should not question a child about the underlying abuse, neglect, or abandonment, as those issues are the province of the juvenile (or family law) court. A report from the Citizenship and Immigration Ombudsman speaks directly to this point, recommending that USCIS:

“[c]ease requesting the evidence underlying juvenile court determinations of foreign child dependency.”²¹ For now, the best practice is to be prepared to submit evidence of the bona fides of a case, but to protect the confidentiality of the evidence of abuse, neglect, and abandonment to the greatest extent possible.

What’s the Rush?

One key benefit of the TVPRA amendments is an “age-out” provision for SIJS cases.²²  An applicant who is unmarried and under age 21 cannot be denied SIJS based on age.²³ This age-out protection does not change the fact that the best practice is to act quickly in these cases even when a child is well under age 21.

There are teenagers who want to get their first job, children wanting to join foster families vacationing in Belize, and students who want to apply for college loans, all of whom will be stopped in their tracks without permanent resident status. There are also a few specific circumstances where promptly resolving a child’s immigration case can dramatically alter the child or youth’s future. Consider the following examples of children and youth for whom obtaining permanent resident status promptly is critical. 

Start the Five-Year Clock

An undocumented child with severe mental and physical disabilities will often have a critical need for Supplemental Security Income (SSI) benefits as soon as possible. SSI is not available to most permanent residents.²⁴  Obtaining U.S. citizenship is the best option for a youth in this situation since it eliminates immigration-related restrictions on access to benefits. However, a naturalization applicant must be 18 years old and must have accrued five years as a lawful permanent resident (LPR) in the U.S. to apply for naturalization (among other requirements).²⁵  The five-year clock begins running when a child obtains LPR status. Even if a child or youth does not become a citizen, the five-year bar on access to most means-tested federal benefits means the sooner a foster child obtains LPR status, the better.²⁶ 

Child Citizenship Act

Getting LPR status for an undocumented child quickly can also be crucial if a child will be adopted. The expense and uncertainty surrounding immigration matters can deter a prospective adoptive parent and prolong a child’s stay in foster care.  Moreover, if a child obtains LPR status before an adoption, the child is under age 16 when the adoption is consummated and one of the adoptive parents is a U.S. citizen, the child will likely qualify for automatic citizenship under the Child Citizenship Act (CCA) when the adoption is consummated.²⁷ This means that a child who would otherwise have to wait at least until age 18 to apply for naturalization can instead immediately obtain citizenship. This can be a huge benefit to a child and family.

Who Should Not Apply

All prospective immigrants are subject to a long list of grounds of inadmissibility ranging from illegal entry to money laundering and prostitution.²⁸  Children granted SIJS are exempt from many grounds (including public charge and illegal entry) and may seek discretionary waivers for all but the most serious grounds of inadmissibility.²⁹ For the youngest foster children, there are rarely inadmissibility issues. This is one more reason to avoid delay in resolving immigration issues — the older a child is, the greater the chance that some type of misconduct could affect eligibility.

If a youth has a substance abuse problem, any arrests or convictions, a mental disorder that presents a danger to self or others, or prior deportations, these are red flags that require careful assessment before deciding to file for SIJS. Juvenile adjudications are not treated as criminal convictions for purposes of immigration.³⁰ Nonetheless, it is important to find out the nature of the underlying conduct and the disposition for all arrests. If a deportation order was previously entered against a child in absentia, it may be possible to file a motion to set the order aside. When in doubt about any inadmissibility issue, the best course of action is research and consultation with an experienced immigration advocate. 

With any undocumented youth, it is wise to let them know the impact of any arrests, substance abuse, or similar misconduct is magnified, because they impact eligibility for LPR status. Marriage disqualifies a youth from SIJS,³¹  so any youth old enough to consider marriage should be warned about this also.

The reason for careful scrutiny of cases before filing with USCIS is that a child or youth who is not eligible for an immigration benefit who submits an application can be placed in removal (deportation) proceedings. While this is perhaps less likely in the wake of the USCIS’ new deferred action policy,³²  especially for youth with substance abuse issues, arrests, or a prior deportation history, caution is appropriate.

Process for Applying for SIJS

Once the family court signs the SIJS order, the next step is the fairly simple but labor-intensive process of completing forms and compiling the required supporting documents for both the SIJS petition and application for adjustment of status, which are filed concurrently.³³ Required supporting documentation includes a medical exam from a USCIS-approved physician, passport-type photographs, and a birth certificate with an extract or summary translation. While there is no filing fee for the SIJS petition, the filing fees for adjustment of status are in the range of $1000 per applicant. Fortunately, fee waivers are available and routinely granted to foster children.³⁴

After the complete packet is submitted, USCIS will send an appointment notice for the biometric fingerprints.³⁵  Once fingerprints are taken and the criminal background check is complete, the last step is an interview at the district USCIS office. The interview can be waived for petitioners under age 14, or when the adjudicating officer deems it necessary.³⁶ If an interview is held, a letter approving LPR status is often generated at the interview and the actual card is mailed later. If a decision is not made at the interview, a decision is usually mailed within the next week or two. A Request for Evidence is issued if more documentation is necessary. If SIJS is denied, an appeal can be filed with the Board of Immigration
Appeals.³⁷ 

VAWA, “U” and “T” Visa

Other remedies to consider for an undocumented child include a petition under the Violence Against Women’s Act (“VAWA”) or an application for a “U” or “T” nonimmigrant visa. SIJS is often the preferred remedy for foster children and youth because it is a broader remedy than VAWA (which is only available if the perpetrator of specific types of abuse was a U.S. citizen or LPR) and because a SIJS petitioner can immediately apply for LPR status (whereas “T” and “U” nonimmigrants must wait three years to apply for LPR status). Most children will not have the luxury of choosing between immigration remedies. For those that do have more than one option, an immigration advocate can advise which option will best serve each child’s interest. 

Violence Against Women Act (“VAWA”)

VAWA allows qualifying child or youth victims of battery or extreme cruelty to “self petition.”³⁸ The perpetrator can be a parent (including stepparent), but the abuser must be either a U.S. citizen or a lawful permanent resident. VAWA seeks to prevent a domestic violence perpetrator from using an undocumented person’s status as a method of control. A self-petitioning child applying for VAWA generally must:

• be under age 21 and unmarried;
• have lived with the parent who has perpetrated the abuse; and
• have good moral character.³⁹ 

If a child is VAWA eligible, this relief does permit an immediate application for LPR status, like SIJS and, many of the grounds of inadmissibility can be waived as well.

“U” for Crime Victims

A child or youth who has been a victim of certain serious crimes and has aided or is willing to aid in prosecuting the offense may qualify for temporary status as a “U” nonimmigrant. This remedy requires that the child or youth:

• has suffered substantial physical or mental abuse as a result of having been a victim of certain serious criminal activity; and
• possesses information about the criminal activity and has been or will likely be helpful in investigating or prosecuting such criminal activity.⁴⁰

Every “U” visa application requires a certification regarding the crime in question. Law enforcement and child protection agencies are authorized, but not required, to certify “U” cases.⁴¹  A “U” visa permits a child to remain in the U.S., and after three years, to apply for LPR status. Sometimes family members may also qualify for relief.⁴²

“T” for Trafficking Victims

“T” nonimmigrant status is available to a person who:

• has been a victim of a severe form of trafficking
• is physically present in the U.S.;
• has complied with any reasonable request for assistance in the investigation and
• prosecution of trafficking or who has not attained 18 years of age; and
• would experience extreme hardship involving unusual and severe harm upon removal.⁴³ 

Obtaining “T” status also allows a child to apply for permanent resident status after three years of continuous presence. Sometimes family members may also be eligible for relief.⁴⁴

Calling All  Citizens

An important category of children in the undetermined status category are “hidden” U.S. citizens whose biological or adoptive parents may not even know they are citizens. Some are children of U.S. citizens born overseas, others are international adoptees. The pivotal information is that the child has at least one parent, biological or adopted, who is a U.S. citizen. While many undocumented children have undocumented parents, that is far from universal. A highly mobile society means it is common to find a child was born overseas to a U.S. citizen mother or father. Every child in this situation will not turn out to be a U.S. citizen, but the importance of this legal right makes it critical to consider in every case.

The other important path to citizenship, probably the most common, is naturalization. A child protection agency can help eligible youth who want to pursue naturalization. For youth who leave care before they become eligible at age 18, the agency can provide referrals to community resources for this process.

What follows is a quick look at the most common citizenship avenues for children and youth in foster care.

Automatic Citizenship

The Child Citizenship Act of 2000 (“CCA”), effective February 27, 2001 provides for “automatic citizenship” if a foreign-born child:

• has at least one U.S. citizen parent (by birth or naturalization);
  
• is unmarried and under age 18;
  
• is residing in the U.S. in the legal and physical custody of the citizen parent; and
  
• has been admitted for lawful permanent residence.⁴⁵  

The legal right is conferred automatically when the last statutory requirement is met. To get proof of citizenship, however, requires filing an application for either a certificate of citizenship or a U.S. passport. A U.S passport application is less expensive, but some experts recommend the certificate of citizenship because, unlike a passport, the certificate does not expire.

Adopted children can qualify under the CCA, if the adoption meets specific requirements, including that the adoption occur before the child’s sixteenth birthday.⁴⁶ There are two fairly common circumstances where the CCA benefits foster children who have been or will be adopted.

Internationally Adopted Children

The phenomena of children entering state foster care after an international adoption fails presents a special challenge. Virtually all internationally adopted children enter the U.S. with permanent resident status, but some are also entitled to U.S. citizenship under the CCA.

International adoptees enter the U.S. under various laws. Some children are subject to the protections of the Hague Adoption Convention, some enter from non-Hague member nations, some are adopted abroad, and some enter to be adopted in the U.S.⁴⁷  The key issue when such a child or youth enters foster care is whether U.S. immigration authorities have recognized the adoption as a “full, final and complete adoption.”⁴⁸

If a child enters the U.S. on an IH-3 or IR-3 visa, this signifies that the USCIS has approved the adoption as full and final.⁴⁹  A child who enters on an IH-4 or IR-4 visa, however, is admitted for adoption by preapproved adoptive parents in the U.S.⁵⁰ If a child who entered the U.S. on an IH-4 or IR-4 visa enters foster care, it is essential to find out whether the child was adopted in the U.S. after entry and, if so, obtain copies of the U.S. adoption decree. If a foreign adoption has been recognized as full and final or if the child was adopted in the U.S. after entry, the child is likely eligible for citizenship under the CCA.

In every case when a child adopted from overseas enters foster care, it is important to obtain copies of all immigration entry documents and adoption records. They are needed to determine the child’s status and, if necessary, apply for a certificate of citizenship.

As long as an internationally adopted child entered the U.S. with LPR status, the fact that the family did not consummate the adoption in the U.S. does not leave the child undocumented, even if the child entered on an IH-4 or IR-4 visa. Unless a child in this situation is adopted again before age 16, however, the child will not qualify for automatic citizenship and must wait until at least age 18 to apply for naturalization. (See Naturalization, below.)

Children Adopted from State Agencies

If a foster child will be adopted while under age 16 and one prospective adoptive parent is a U.S. citizen, the child will be eligible for automatic citizenship as long as he or she is a LPR when the adoption is consummated. In this circumstance, obtaining LPR status for an undocumented child not only relieves adoptive parents of the burden of this time-consuming and expensive process, it gives the child the rights of a citizen immediately, rather than waiting until the age 18, at the earliest, to naturalize. Although citizenship is automatic if the Child Citizenship Act applies, prospective adoptive parents should be informed about the process for obtaining a certificate of citizenship or U.S. passport for an eligible child. 

Fortunately, once a child qualifies for automatic citizenship under the CCA, later events do not alter citizenship status. Thus, neither removal of the child from the adoptive parents’ custody nor termination of parental rights by child protection authorities will divest a child of U.S. citizenship in this circumstance.

Child of U.S. Citizen Born Overseas

All children born to one or both U.S. citizen parents in a foreign country are not U.S. citizens, but many do qualify as citizens. Citizenship laws have changed many times, but currently the same rules apply to all persons born after November 14, 1986. If both a child’s parents are U.S. citizens, and one parent has resided in the U.S. before the child’s birth, a child born overseas is a U.S. citizen at birth.⁵¹

If only one parent is a U.S. citizen, the citizen parent must have lived in the U.S. for five years, including at least two years after age 14, for the child to acquire citizenship at birth.⁵² 

If a child of a U.S. citizen was born “out of wedlock,” more research is necessary, as different requirements apply depending on whether the mother or father is the U.S. citizen.⁵³ If a foster child qualifies as a citizen based on one parent’s citizenship, proof of citizenship can be obtained by filing either an application for a certificate of citizenship⁵⁴ or for a U.S. passport. 

The required evidence includes a child’s birth record, proof of the parents’ marriage and of one parent’s citizenship (birth record or naturalization certificate, most commonly), and evidence that the citizen parent met the five-year residence requirement in the U.S. before the child was born (including two years after age 14).  Even if a parent is deceased or uncooperative, residency can usually be proven with school, employment, housing, or even prison records.

Citizenship laws are complex. If a child has at least one citizen parent, the value of potential citizenship merits researching and consulting an expert to determine if the child is entitled to U.S. citizenship.

Naturalization

As noted above, one compelling reason to push for LPR status for a foster child is to get the five-year clock moving as a permanent resident to apply for naturalization. A naturalization applicant must:

• be at least 18 years old;
• have at least five years continuous residence in the U.S. as a lawful permanent resident;
• show good moral character; and
• pass a test of U.S. history and government, as well as speak, write, and read English.⁵⁵ 

The USCIS website has excellent materials to help youth understand the naturalization process and prepare for the exam. For foster children with physical or developmental disabilities or mental impairments, the English proficiency and history and government requirements can be waived.⁵⁶  Technically there is no waiver for a person unable to take the naturalization oath, but USCIS has interpreted this requirement generously when an applicant is severely disabled.

Youth who leave care before becoming eligible to naturalize should also be informed of the option and referred to community resources.

Conclusion

If the tangle of citizenship and immigration options for foster children and youth seems overwhelming, take a deep breath and remember one thing. For every child and youth you encounter, ask: Was the child born in the U.S.? The answer will be yes in most cases. If the answer is no, flag the case and keep asking questions. If you do no more than make certain a child’s need for citizenship or immigration assistance is highlighted, you will be a hero.

Pamela Kemp Parker is a Special Projects Attorney for the Texas Department of Family & Protective Services in Austin, Texas. She designs legal training materials and serves as a resource on the Indian Child Welfare Act, international issues, and citizenship and immigration cases.

Case Studies

Enrique

Enrique was born in Mexico. He has serious mental and physical disabilities, entered foster care at age 13, and cannot reunify with his parents. By applying for SIJS as soon as he became eligible, he was able to become a lawful permanent resident (LPR) at age 14. After five years as a LPR, at age 19 Enrique will be able to apply to become a naturalized citizen (with a disability waiver for the English and government test). Once he is a U.S. citizen, the immigration-related restrictions on access to SSI (Supplemental Security Income) benefits will not apply. When Enrique leaves foster care, the SSI will be crucial to fund placement in a supportive environment.

Lilia

Lilia was born in Honduras, orphaned and entered foster care at age five after a relative brought her to a U.S. children’s hospital and failed to return for her. With no possibility of reunification with a parent, the family court found she was eligible for Special Immigrant Juvenile Status (SIJS) almost immediately after she entered foster care. She was granted SIJS and obtained lawful permanent resident (LPR) status before she was adopted the next year. As a LPR under age 16 when she was adopted, with at least one U.S. citizen adoptive parent, she was eligible for automatic citizenship when the adoption was finalized. Her parents can get proof of her citizenship by applying for a certificate of citizenship or a U.S. passport. 

Rafael

Rafael was born in Ecuador and entered foster care at age 10. He could not be reunified with his father, who had a chronic substance abuse problem and never had his son in his care.  Although he reunified with his mother, the court was able to make the required SIJS findings because reunification with his father was not viable. Rafael obtained SIJS and lawful permanent resident (LPR) status as quickly as possible, and the five-year period of LPR status began when he was only 11 years old. Rafael had to wait until he was 18 to apply for citizenship, but as a LPR he was able to work part time while in high school and qualify for student loans and he was able to naturalize and obtain U.S. citizenship when he was a freshman in college.

Questions to Ask About Foreign-Born Foster Children

Has the foreign consul been notified?

• Article 37(b) of the Vienna Convention on Consular Relations requires that notice be given to the consulate from the child’s home country. See Consular Notification and Access, U.S. Department of State (September 2010) available online at: Also see Parker, Pamela Kemp. “The Road to Permanent Resident Status for Undocumented Foster Children--Special Immigrant Juvenile Status.” Child Law Practice 9(2), February 2001.

Has a birth record been requested?

• If family members cannot provide a birth record, contact the foreign consul or research online to identify vital statistics resources in the child’s home country.

Is repatriation an appropriate plan for a child?

• If a parent or relative placement is available, contact social services in the home country, which may be accessed through consular staff, or International Social Services to obtain a home study.

Is one or both of the child’s parents a U.S. citizen?

• Assess whether the child may be entitled to citizenship.

Was the child adopted?

• Find out the child’s status on entry to the U.S. and assess whether the child is eligible for citizenship.

Does the child have lawful permanent resident (LPR) status?

• If the child is a LPR but the permanent resident card is expired or lost, it may be necessary to file for a replacement.
  
• If a youth has been a permanent resident for at least five years and is at least 18 years old, assess eligibility for naturalization.

Does the child appear to be undocumented?

• Is the child eligible for Special Immigrant Juvenile Status (SIJS)?
  
• Is the child eligible for a Violence Against Women act (VAWA) petition?
  
• Is the child eligible for a “U” or “T” nonimmigrant visa? 

Resources

U.S. Citizenship & Immigration Services

Office of the Citizenship and
Immigration Services Ombudsman

Immigrant Legal Resource Center
1663 Mission St., Ste. 602
San Francisco, CA 94103
(415) 255-9499, ext. 6263

National Center for Refugee and Immigrant Children
U.S. Committee for Refugees and Immigrants
2231 Crystal Dr., Ste. 350
Arlington, VA 22202
(703) 310-1130