On June 16, 2016, the Office of the Citizenship and Immigration Services Ombudsman hosted a public teleconference on issues related to the Special Immigrant Juvenile (SIJ) program.
Participants who joined the CIS Ombudsman
- Lenni Benson, Professor of Law at New York Law School; Director of the NYLS Safe Passage Project;
- Jennifer Podkul, Director of Policy, Kids in Need of Defense (KIND)
- DHS Policy
- Executive Office for Immigration Review (EOIR)
- Office of Policy and Strategy; Field Operations Directorate; Intake Operations Division, Office of Intake and Document Production, Management Directorate; Office of Chief Counsel
- Overview of CIS Ombudsman Recommendation, “Ensuring Process Efficiency and Legal Sufficiency in Special Immigrant Juvenile Adjudications”
- This recommendation is available on the CIS Ombudsman website and identifies four specific areas where USCIS could improve the implementation of the SIJ program. We recommended that USCIS:
- Centralize SIJ adjudications in a facility whose personnel are familiar with the sensitivities surrounding the adjudication of humanitarian benefits for vulnerable populations;
- Take into account the best interests of the child when applying criteria for interview waivers;
- Issue final SIJ regulations that fully incorporate all statutory amendments; and
- Interpret the consent function consistently with the statute by according greater deference to State court findings.
- In its April 16, 2016 response to these recommendations, the agency stated that it generally concurred with our recommendations. It endorsed centralization of the processing of SIJ petitions and adjustment applications.
- Though it did not specifically mention that it was taking the best interests of the child into account in establishing interview waiver criteria, USCIS stated that it was considering input on waiver criteria from numerous program offices and directorates within the agency.
- The agency also stated that comprehensive policies and regulations on SIJ classification are forthcoming.
- Finally, in response to our office’s ongoing concerns that USCIS is not according proper deference to the state court order underlying the SIJ petition, USCIS stated that adjudicators will continue to request additional information and conduct interviews if the officer perceives there to be discrepancies in the petitioner’s immigration file and the information contained in the juvenile court order.
- Though our office and USCIS differ in our understanding of the agency’s consent function and the manner in which the agency exercises its consent function continues to be serious concern of this office, this is not the topic of today’s call.
- Today we have gathered to discuss the more recent issues impacting the SIJ program as a result of visa numbers being oversubscribed for children with SIJ status from Honduras, El Salvador, Guatemala and Mexico.
Impact of Visa Bulletin on SIJ Program
The Department of State released the May Visa Bulletin on April 12, 2016, announcing a “final action date” of January 1, 2010 for the EB-4 category for special immigrants, including special immigrant juveniles from El Salvador, Guatemala and Honduras. Visas for these three countries were oversubscribed.
The practical effect of that announcement was that USCIS accepted all properly filed I-485s for this category through April 30, but not after.
It’s important to note that though the agency accepted I-485s between the date of the announcement of the May Visa Bulletin (April 12) and April 30, it will not issue final decisions on the I-485s submitted during those few weeks until visa numbers become available again. USCIS will now only make decisions on I-485s that were filed before January 1, 2010.
Because there is no cap on the number of SIJ petitions or I-360s USCIS can accept, children may continue to submit their I-360 petitions.
The July Visa Bulletin included an announcement that visas were oversubscribed for SIJ status children from Mexico and also provided a final action date of January 1, 2010.The Visa Bulletin addressed a common misconception about the final action date, explaining that a final action date of January 1, 2010 does not mean that applicants are subject to a 6-year wait for visas to become available, but is only intended to stop further use of numbers by applicants of those countries under the annual limit.
The bulletin also stated that in October when the FY 2017 numbers become available, the employment EB-4 category for Mexicans will again become current. It stated further that an official determination for the other three countries will be made in early September and it is anticipated that the final action date for those three countries will be a date in 2015.
Stakeholder Update (Lenni Benson; Jennifer Podkul)
We are pleased and grateful with responses from EOIR, DHS, and USCIS in NYC after the issuance of the May Visa Bulletin. Some glitches of the technical nature after Visa Bulletin.
Advocates needed to locate receipt numbers for previously filed visa petitions for children in proceedings. The receipt numbers are essential to allow a motion to terminate or other kinds of procedures before the agency. There have been a few cases where the attorneys are still awaiting an actual receipt number. So we’re asking USCIS to clarify what procedure to follow to make a query on a missing receipt number.
Another issue that attorneys have reported to us is priority dates that were assigned by the lockbox staff or the USCIS adjudicator that match the filing of the petition for adjustment of status but the priority date did not reflect the earlier filing date of the visa petition. We'd like to know how to correct and request corrected priority dates.
There have been a few instances where attorneys received a rejection of a fee waiver request and the staff returned the file to the attorney requiring additional proof of the child’s poverty or their qualification for fee waiver. We had anticipated this might be a concern and we have been assured in other liaison conversations that attorneys could bring forward an erroneous denial of the waiver, perhaps supplementing evidence if necessary, but there should be a general presumption that children who have the family court/dependency court filings are indeed usually quite dependent and poverty-stricken.
For cases that are pending, there's some concern about what it means when USCIS is “working a case.” What is the agency going to be doing with the number of cases that are filed but no visa can be issued because visas have been used for this fiscal year? Will children who've been asked by USCIS to complete biometrics have a way to automatically have the fingerprints refreshed rather than needing to make another appointment and be physically re-fingerprinted? We also had some problems where local officers were demanding additional identification for young people who are coming in to do the biometrics. Many of the youth that we're assisting really do not have identification documents. We would like field operations to please remind their officers that identification demands for children are different.
And we're concerned about making sure that medical exams are not requested at this stage for the children from El Salvador, Guatemala or Honduras – because with priority dates that may be quite far in the future getting a medical exam, paying the doctor’s fee is a challenge for these indigent children. This is the one fee that usually cannot be waived and as medical exams can age out, we are hoping that a medical exam would not be issued/requested by the service until visa numbers are close to immediately available for the child's particular priority date.
What mechanism will USCIS use to report to the visa office as they work the cases and do critical preclearance to request a visa number? Again from some earlier conversations, it appears that there wasn't a very formal mechanism for this particular subset of cases to report the demand in employment based fourth preference where the special immigrant juvenile members are allocated. How will the Department of State have accurate data in the future?
Would there be any special instructions for the youth about using advance parole to visit extended family members?
Since children can still file Form I-360 and potentially a Form I-485, will there be any special accommodations by USCIS or EOIR to allow youth in removal proceedings to seek expeditious termination of their case so that adjustment of status can be filed with the lockbox before the July 1 cut off?
Stakeholders would also like to hear updates about the progress of centralization; how, in the future, to make queries with centralized adjudicators; and whether, after centralization, there will be emergency filing procedures with local field offices. We are also concerned with increases in RFEs and NOIDs where CIS is looking at other statements in the file (I-213, consular interview, statements made by adults rather than children). We want to make sure CIS is contextualizing how these statements are taken. We hope to work toward EAD solutions.
Recently many of us have seen an increase in RFEs or even Notices of Intent to Deny, where USCIS is looking at other statements in a child’s file. It might be a statement made on an I-213 prepared by Customs and Border Patrol officer, a statement that was made at the time of a child applying for a visa at a consulate, or a statement that was made by an adult who might have been facilitating that child’s application for a passport or visa. When children are seen at the border they’re often under great physical and emotional stress. Often the children are very young and unable to describe their own situation. So asking the questions at the border and then using these statements in the I-213 is of concern to us. These statements shouldn't be used to second-guess the careful examination, evidence production and trials that are conducted in family or dependency courts in the state.
We hope that we can work with USCIS to consider EAD issuance for children who are not yet able to file for adjustment of status. We believe that this is supported in the design of the Congressional statute; with a bifurcated respect of State adjudication and the federal adjudication once a child has been found by a sovereign state to not have – for it to not to be in their best interest for them to return. We believe it is essential for a child with SIJ status to be considered as someone who has move forward on the bridge between being out of status to being someone towards status. The issuance of an EAD card and the termination of removal proceedings for these children is essential for them to have integration.
Analysts review final action date chart. At this time, E, G, H categories are unable to concurrently file. If received, the Lockbox will receipt the I-360 and reject the I-485. When adjudicating the fee waivers, the original receipt date will be honored if the fee waiver was erroneously rejected. Please reach out to email@example.com if you have questions or need assistance. Your email can also be used to locate receipt numbers for underlying I-360s.
USCIS is centralizing I-360 and I-485 adjudication with target for this summer at the National Benefits Center (NBC). Operational procedures and training materials are being developed. USCIS will provide any updates on the implementation of centralization via public messaging; if you would like to sign up for those e-gov messages you can go to the uscis.gov website and click on the get email updates and you'll be allowed to sign up.
Update on the SIJ regulations. We continue to follow the federal rulemaking process to amend the regulations governing SIJ classification and related applications for adjustment of status to lawful permanent residence. The final rule will implement updates to eligibility requirements and other changes made by the Trafficking Victims Protection Reauthorization Act of 2008. Information on the estimated timeline for publication is updated twice per year and is publicly available in the Unified Agenda of Proposed Regulatory and Deregulatory actions, which is available on the website of the Office of Management and Budget. http://reginfo.gov/public/do/eAgendaViewRule?pubId=201604&RIN=1615-AB81.
The SIJ final rule currently has a target publication date of April 2017.
Thank you and I believe that concludes the CIS updates for the call and we will turn it over to the next set of speakers.
An update from the court in terms of information about what judges know and information that has been given to judges specific to the EB-4 visa availability situation.
Currently the judges know options in terms of how to address the EB4 visa situation in court. They would consider continuance of a case, administrative closure of a case, or even possible termination should the circumstances be appropriate for such action.
Each case is definitely circumstantial and different. And that is based upon the facts of each case, where the respondent may be at in the process, and judges review each situation and the circumstances and the facts of each case before they would make any such determination on a case in terms of what should happen, for instance a continuance or closure or termination.
Judges act independently and make their own decision and determination regarding each specific case. They know what the current case law is on such types of actions that I mentioned – continuances or administrative closures or termination – so they would be following case law on both out with from the Board of Immigration Appeals as well as well as from any available case law from the circuits with in which each judge is currently in.
DHS Policy updates
Aware and concerned by the SIJS challenges. We are considering a variety of solutions and actively engaged with DHS components and EOIR. Interested in hearing from stakeholders.
Questions and Answers
The following notes reflect the Q&A portion of the teleconference. Where no answer was provided on the teleconference by the agency, CIS Ombudsman has followed up with USCIS (see questions below). We will post answers from USCIS on our website when we receive them.
Washington, DC: Our office happens to represent a lot of SIJ children for Northern Virginia foster care agency and we're very concerned that many of them won't be able to file their I-485 before they turn 21 and so I wanted to suggest or ask whether there's any possibility that the filing date for the I-485 can be earlier than the final action date in these cases. Just a few months ago as you know the state department came out with filing dates separate from final action dates for a permanent resident I-485 applications and why don't why doesn't USCIS just deem that special immigrants can file their I485 although the final action date is not yet current?
New York, New York: My question is if a child properly filed his or her 485 and I-360 before April 30th but they didn't get their removal proceedings terminated until after April 30th, will CIS deny the 485 or reject them because at the time of filing technically, CIS didn’t have jurisdiction or will they do to keep them based on the date and time when they look at that 485?
Newark, New Jersey. I have a question about EADs being issued while I-360s are pending. I'd like to know if there's going to be any guidance coming to attorneys in the field in the future about whether for the triangle countries or for Mexico for the time being any EADs could be processed or issued to these individuals while they're waiting for visa numbers to become available.
Chicago, Illinois: My question is, short of filing a mandamus, what's the best way to escalate a case that's way outside the processing time if you’ve tried to raise the issue – so that your local district office – like so who do I go to next if the case has just been pending for far too long? Caller clarified that she tried the district office and she tried the Ombudsman’s Office.
CIS Ombudsman explained that its office will continue the process of addressing the client’s case.
Washington, DC: I have more of a suggestion in response to being open for specific policy suggestions. One fix that could be helpful for approved I-360s would be grant deferred action similar to the VAWA process, that when VAWA self-petitioners get an approved I-360, they get a grant of deferred action which allows them to see some work authorization and it would be helpful to have a similar process with SIJ I-360s.
New York, New York: I know ICE is not joining us on the call today but we've reported that some of us have had issues where ICE counsel were not aware of how – they're not as skilled or experienced and reading the Visa Bulletin either so – I'm just wondering if EOIR might also talk about again how they're communicating with the judges, movement in the Visa Bulletin, so that the court is prepared to respond to argument by ICE or by unrepresented children about whether or not they can move for termination of their case or administrative closure.
EOIR: We of course can't speak for ICE or to what their policy is; I will reiterate what Judge Hoogasian mentioned earlier which is that we have provided information to the judges about the EB4 retrogression, what it means, and what their tools in the toolbox are, including as admin closure, termination, and continuances.
Caller: thank you and then I'm wondering how fast can we in this field help the policy office of DHS with the last caller’s helpful suggestion about the idea of children who've been approved for an I-360 or perhaps being paroled and then paroled would qualify them under existing regulation and 274 for work authorization. Is there some mechanism that would be helpful to USCIS to receive letters from various organizations, a joint letter, what would be useful to you?
CIS Ombudsman: going through our office first would be great; we are definitely interested and invested in this conversation and would welcome that.
Raleigh, North Carolina: This question is for DHS policy and the Immigration Court. I practice in the Charlotte Immigration Court in North Carolina. We have I-360s that are admin closed, currently pending, or approved. But now we are seeing that the trial attorneys are submitting motions to re-open the previously admin closed cases. Do you have any guidance as to this policy, is it going to continue that way, or will there be something to tell them not to issue motions to reopen based on admin closures, pending I-360s or approved I-360 applications?
DHS Policy: I was not aware of this, but obviously we are in conversations throughout the department about the issues relating to the SIJ population and this is just going to inform conversations a little bit more. We’ll be in contact with ICE and see what if any guidance has been developed or whether this is just something that is happening locally on a case-by-case basis.
USCIS Responses to Questions
1. Regarding biometrics: once a young person’s fingerprints are submitted, can USCIS renew the check without the young person having to appear again?
Response: Applicants for adjustment of status, who are 14 years of age or older, are required to appear for fingerprinting at an Application Support Center. Should the visa become unavailable after the filing of an SIJ-based Form I-485, USCIS will refresh the fingerprints taken in connection with the Form I-485 once visas become available.
2. Regarding medical exams: because the medical fee cannot be waived, would it be possible to request medical exams when the issuance of visa numbers is imminent or they are immediately available?
Response: When a visa is not available after the filing of an SIJ-based Form I-485, the medical exams will be requested when visa numbers are imminently available or have become immediately available.
3. Two questions on communication with DOS re: visa numbers:
a. How does USCIS communicate the demand for visa allocations to the Department of State so that DOS can understand the demand for the EB-4 numbers?
Response: USCIS and the Department of State are in regular communication to discuss visa usage and demand.
b. What mechanism will USCIS use to report to the visa office as they work the cases and do critical preclearance to request a visa number?How will State have accurate data in the future?
Response: Currently USCIS reviews the Form I-485 and, if deemed approvable, a visa number is requested in the Immigrant Visa Allocation Management System (IVAMS) and is assigned a pending visa number by the Department of State. USCIS and the Department of State are in regular communication to discuss visa usage and demand.
4. Two questions on emergency filing procedures:
a. How will the agency handle emergency same day filings for youth who may be turning 21 once remote adjudication becomes operational?
Response: Centralization of SIJ based adjudications will not change the filing requirements (which generally require filing at the Chicago lockbox) or local office procedures for accepting emergency filings.
b. Will there be means to still allow emergency filing procedures with local field offices after centralization is implemented?
Response: Yes. Centralization of SIJ based adjudications will not change the filing requirements (which generally require filing at the Chicago lockbox) or local office procedures for accepting emergency filings.
5. Will USCIS reject or deny a SIJ based I-485 that was concurrently filed with an I-360 with USCIS on 4/29/16 if removal proceedings were still pending against the adjustment applicant on 4/29/16, but were then terminated subsequent to the filing? Will USCIS deny the I-485 because it did not have jurisdiction over the I-485 at the time of filing or will USCIS adjudicate the I-485 when a visa number becomes available based on the 4/29/16 filing?
Response: USCIS has jurisdiction over an application for adjustment of status, unless the immigration judge has jurisdiction. See 8 CFR 245.2(a)(1). USCIS will review all Form I-485s filed with USCIS on a case-by-case basis to determine if USCIS has jurisdiction over the adjustment of status application, and to determine what the appropriate next steps will be for that case.
6. Can USCIS provide timing on when SIJ cases will be consolidated and how attorneys will make queries to the new adjudicators as they have been able to do with field offices?
Response: USCIS is working to centralize SIJ based adjudications (Form I-360 and SIJ-based Form I-485) at the National Benefits Center (NBC) with a target timeframe of implementation by early FY17. Centralization is a date forward initiative. SIJ based cases pending in field offices pre-centralization will be worked to completion by the respective field offices. When centralization is implemented, USCIS will publically communicate contact information that petitioners and attorneys can use to communicate with the NBC.
7. We'd like to know how to correct and request corrected priority dates. Attorneys have reported to us is priority dates that were assigned by the lock box staff or the USCIS adjudicator that match the filing of the petition for adjustment of status but the priority date did not reflect the earlier filing date of the visa petition.
Response: Lockbox Support can provide assistance in obtaining corrected receipt notices. Applicants or their representatives may contact Lockbox Support by sending an email to firstname.lastname@example.org.
8. What is the procedure to follow to make a query on a missing receipt number? Advocates need to locate receipt numbers for previously filed visa petitions for children in proceedings. The receipt numbers were essential to allow a motion to terminate or other kinds of procedures before the agency. There have been a few cases where the attorneys are still awaiting an actual receipt number.
Response: Lockbox Support can provide assistance in obtaining receipt numbers for petitions that were recently filed at the lockbox. Petitioners or their representatives may contact Lockbox Support by sending an email to email@example.com.
9. Would USCIS consider adopting a rule that did not require a showing of “recent proof” of poverty for a child?This would address I-912 waiver rejections and onerous RFEs.
Response: Along with their signed fee waiver request, Special Immigrant Juveniles filing a Form I-485 can provide evidence that they were approved or have filed for SIJ classification in order to be granted a fee waiver. Evidence may be a concurrently filed Form I-360 or an I-797 for their Form I-360. For further information, please refer to the March 13, 2011 USCIS Policy Memorandum, Fee Waiver Guidance as Established by the Final Rule of the USCIS Fee Schedule. Lockbox Support, firstname.lastname@example.org, can provide case specific feedback related to the denial of a request for fee waiver when needed.
10. Are there special instructions for advance parole requests for SIJ applicants? For example, for visits to extended family members?
Response: The instructions for requesting an advance parole travel document can be found in the Instructions for Application for Travel Document, Form I-131. The instructions do not contain any special instructions for SIJ petitioners, so they should follow the general instructions.
11. Statements provided by children at the border and recorded in Form I-213 are inherently unreliable and should not be used to challenge later family court findings. Children are often under great stress and discomfort at the border and are frequently are too young to contextualize their own situation. They have not yet built relationships of trust with administrators or judicial figures. Family or dependency court is designed to help young people present testimony and evidence of their needs and to allow the record to reflect the family and societal context of why a child needs assistance or protection from past abuse, neglect or abandonment. Will USCIS continue to rely on a child’s statements at the border recorded in the I-213?
Response: In general, information provided in Form I-213 is considered to be reliable. USCIS plans to issue policy guidance via the USCIS Policy Manual that will include clarification on when and to what extent children’s statements made at the time of apprehension may be relied upon. USCIS estimates that this policy guidance will be issued and publicly available in 2016.
12. Use of a child’s statements at a consular post or the statement of an adult made on the child’s behalf to dispute later findings in family court is also problematic. In particular, some children are not free to obtain a passport or visa without signatures of parents in the foreign country and in some countries, fathers control all travel. As in asylum adjudication, the circumstances of the original entry need to be understood in light of the full facts. Will USCIS continue to rely on a child’s statements made at a consular post?
Response: USCIS may consider other evidence from its files or from other sources when adjudicating an application or petition. See 8 CFR 103.2(b) Also, as indicated above, USCIS plans to issue comprehensive policy guidance on the SIJ program via the USCIS Policy Manual. This guidance will include clarification on topics such as when there is any type of discrepancy in the record, and how adjudicators should weigh and consider these types of statements.
13. Can USCIS clarify if there are any ‘age-out’ concerns for SIJ applicants who have submitted I-360s and for whom no visa is currently available?
Response: USCIS published updated guidance on age-out protections for SIJ petitioners in the Policy Memorandum dated June 25, 2015, entitled: Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement. This Policy Memo is publically available on the USCIS website at www.uscis.gov. Here is an excerpt regarding the age-out protections:
In accordance with the Settlement Agreement and Stipulation, USCIS will not deny, revoke, or terminate a class member’s application for SIJ classification or SIJ-based adjustment of status if, at the time of filing an application for SIJ classification (Form I-360):
- The class member is or was under 21 years of age, unmarried, and otherwise eligible; and
- The class member either is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing.
In addition, to comply with the Settlement Agreement and Stipulation, this guidance applies to all SIJ petitions and SIJ-based applications for adjustment of status that are filed while the Settlement Agreement and Stipulation are in effect.
In other words, an applicant who is otherwise eligible will remain eligible even if he or she:
- Turns 21 years of age after filing the SIJ petition (Form I-360) but prior to the USCIS decision on the SIJ petition, and/or
- Ages out of the juvenile court’s jurisdiction prior to filing the SIJ petition (Form I-360).
14. Has USCIS adopted a new policy regarding the requirement of certified copies of juvenile dispositions? Practitioners have noticed more frequent requests for these documents and have had to move to unseal juvenile records in order to obtain these records. The cases have primarily involved “reason to believe” issues.
Response: It is long-standing USCIS policy to require certified court dispositions for any arrests or convictions. As indicated above, USCIS plans to issue comprehensive policies on SIJ classification and SIJ-based adjustment of status in 2016. This guidance will include additional clarification on topics such as what evidence must be submitted if an SIJ petitioner has an arrest.
15. Historically, the USCIS office conducted one interview for I-360/I-485 and then granted the I-485 (without further interview) after termination in Immigration Court. In the last several months, it has changed this practice and is now either granting I-360s without an interview and then conducting an interview just for the I-485 (after termination of proceedings), or conducting separate interviews for the I-360 and I-485. Has there been guidance from USCIS to wait for termination of removal proceedings before conducting an I-485 interview?
Response: No, there has not been any new policy issued on this topic. Under 8 CFR 245.6, USCIS has the authority to conduct interviews for the purpose of adjudicating adjustment of status applications, and USCIS retains the discretion to interview SIJ-based adjustment of status applicants as necessary.
16. I would like to know if DHS could permit SIJs with approved Forms I-360 to file their Forms I-485 under the Visa Bulletin’s “DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS,” as opposed to the Visa Bulletin’s “APPLICATION FINAL ACTION DATES”?
Response: For information on when petitioners can use the “Dates for Filing Visa Applications” chart vs the “Application Final Action Dates” chart, you may see the USCIS webpage entitled, “Adjustment of Status Filing Charts from the Visa Bulletin” on the USCIS website at: https://www.uscis.gov/visabulletininfo. An excerpt of information from this page is provided here:
If USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on this page that you may use the Dates for Filing Visa Applications chart. Otherwise, we will indicate on this page that you must use the Application Final Action Dates chart to determine when you may file your adjustment of status application.