On March 7, 2022, U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
Deferred action is an act of prosecutorial discretion that defers proceedings to remove a noncitizen from the United States for a certain period. Deferred action does not provide lawful status.
The SIJ classification is available to noncitizen children subject to state juvenile court proceedings related to abuse, neglect, abandonment, or a similar basis under state law. SIJ classification does not confer lawful status and does not result in eligibility to apply for employment authorization. Deferred action and related employment authorization will help to protect noncitizens with SIJ classification who cannot apply for adjustment of status solely because they are waiting for a visa number to become available. This process furthers congressional intent to provide humanitarian protection for abused, neglected, or abandoned noncitizen children for whom a juvenile court has determined that it is in their best interest to remain in the United States.
USCIS will consider deferred action on a case-by-case basis and will grant it if the SIJ warrants a favorable exercise of discretion. USCIS will automatically conduct deferred action determinations for individuals with SIJ classification who cannot apply for LPR status because a visa number is not available. A separate request for deferred action is not required and will not be accepted by USCIS.
SIJs who have moved since their Form I-360 was approved should update their address with USCIS as soon as possible to ensure that they receive correspondence related to deferred action.
If USCIS grants deferred action, it will be for a period of four years. An SIJ who has been granted deferred action will be able to apply for employment authorization for their period of deferred action by filing Form I-765, Application for Employment Authorization, and indicating eligibility category (c)(14).
This update, contained in Volume 6 of the Policy Manual, is effective May 6, 2022, and applies to eligible noncitizens classified as SIJs before, on or after May 6, based on an approved Form I-360. This guidance is controlling and supersedes any prior guidance on the topic.
Please note that the information provided on this website is for general information purposes only and is not to be construed nor relied upon as legal advice nor the formation of an attorney-client relationship. For a free consultation with Attorney Thomas M. Lee, please contact us.
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