13066 Federal Register / Vol. 87, No. 45 / Tuesday, March 8, 2022 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 204, 205, and 245 

[CIS No. 2474–09; DHS Docket No. USCIS– 

2009–0004] 

RIN 1615–AB81 

Special Immigrant Juvenile Petitions 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

regulations governing the requirements 

and procedures for juveniles seeking 

classification as a Special Immigrant 

Juvenile (SIJ) and related adjustment of 

status to lawful permanent resident 

(LPR). This rule codifies statutorily 

mandated changes and clarifies the 

following: the definitions of key terms, 

such as ‘‘juvenile court’’ and ‘‘judicial 

determination’’; what constitutes a 

qualifying juvenile court order for SIJ 

purposes; what constitutes a qualifying 

parental reunification determination; 

DHS’s consent function; and applicable 

bars to adjustment, inadmissibility 

grounds, and waivers for SIJ-based 

adjustment to LPR status. This rule also 

removes bases for automatic revocation 

that are inconsistent with the statutory 

requirements of the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008 (TVPRA 

2008) and makes other technical and 

procedural changes. DHS is issuing this 

rule to update the regulations as 

required by law, further align SIJ 

classification with the statutory purpose 

of providing humanitarian protection to 

eligible child survivors of parental 

abuse, abandonment, or neglect, and 

clarify the SIJ regulations. 

DATES: This final rule is effective April 

7, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Rena ́ Cutlip-Mason, Office of Policy and 

Strategy, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, by mail at 5900 

Capital Gateway Dr., Camp Springs, MD 

20529–2140; or by phone at 240–721– 

3000. (This is not a toll-free number). 

Individuals with hearing or speech 

impairments may access the telephone 

numbers above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Legal Authority 

C. Summary of the Proposed Rule 

D. Summary of Changes From the NPRM 

to the Final Rule Provisions 

1. Section Heading 

(a) Special Immigrant Juvenile (SIJ) 

Classification 

2. Definitions 

(a) Definitions of ‘‘State’’ and ‘‘United 

States’’ 

(b) Definitions of ‘‘Juvenile Court’’ and 

‘‘Judicial Determination’’ 

(c) Definitions of ‘‘Petition’’ and 

‘‘Petitioner’’ 

3. Eligibility Requirements for 

Classification as an SIJ 

(a) Eligibility Requirements That Must Be 

Met at the Time of Filing and 

Adjudication 

4. Juvenile Court Order(s) 

(a) Dependency or Custody 

(b) Qualifying Parental Reunification 

Determination 

(c) Best Interest Determination 

(d) Juvenile Court Order Validity 

5. Petition Requirements 

(a) Evidence of Age 

(b) Similar Basis 

(c) DHS Consent 

(d) U.S. Department of Health and Human 

Services (HHS) Consent 

6. No Contact 

(a) Clarification of No Contact Provision 

7. Interview 

(a) Ability of Trusted Adult, Attorney, or 

Representative To Provide a Statement 

(b) Presence of Attorney or Accredited 

Representative at the Interview 

8. Time for Adjudication 

(a) Clarification Regarding Adjudication 

Processing Timeframes 

(b) Impact of Requests for Evidence for 

Adjustment of Status Applications on 

Processing Timeframes 

9. No Parental Immigration Benefits Based 

on SIJ Classification 

(a) Application of Prohibition to All of 

Petitioner’s Natural and Prior Adoptive 

Parents 

10. Revocation 

(a) Moved Provisions on Automatic 

Revocation from 8 CFR 205.1(a)(3)(iv) to 

8 CFR 204.11(j)(1) 

(b) Changes to the Grounds for Automatic 

Revocation 

(c) Notice and Evidentiary Requirements 

(d) Revocation on Notice 

11. Eligibility for Adjustment of Status 

(a) Requirements for SIJ-Based Adjustment 

of Status 

(b) Bars to Adjustment, Inadmissibility, 

and Waivers 

(c) No Parental Immigration Benefits Based 

on SIJ Classification 

(d) No Contact 

E. Summary of Costs and Benefits 

II. Background 

A. Special Immigrant Juvenile (SIJ) 

Classification 

B. Final Rule 

III. Response to Public Comments on 

Proposed Rule 

A. Summary of Public Comments 

B. General and Preliminary Matters 

1. General Support for the Proposed Rule 

2. General Opposition to the Proposed Rule 

3. Decision 

(a) Decision Section and Notification of 

Appeal Rights 

4. Section Heading 

5. Terminology 

6. Organization 

7. Effective Date 

8. Regulatory Comments 

9. Miscellaneous 

C. Definitions 

1. ‘‘State’’ 

2. ‘‘Juvenile Court’’ 

D. Eligibility Requirements for 

Classification as a Special Immigrant 

Juvenile 

1. Under 21 Years of Age 

2. Unmarried 

3. Physical Presence in the United States 

4. Juvenile Court Order Determinations 

(a) Dependency or Custody 

(b) Parental Reunification Determination 

(c) Determination of Best Interest 

5. Qualifying Juvenile Court Orders 

(a) Validity at Time of Filing and 

Adjudication 

(b) Exceptions to the Requirement That a 

Juvenile Court Order Be Valid at the 

Time of Filing and Adjudication 

E. Evidence 

1. Petition Requirements 

2. Age 

3. Similar Basis 

4. Evidentiary Requirements for DHS 

Consent 

(a) Background and Legal Interpretation of 

DHS Consent 

(b) Roles of the Juvenile Court and DHS in 

Determining Eligibility 

(c) Conflation of Pursuit of a Juvenile Court 

Order With the Determinations 

Necessary for SIJ 

(d) DHS Consent Process and Procedures 

(e) Burden on the Petitioner 

(f) Privacy Concerns 

(g) Consent Standards 

(h) Consent and Role of the Child’s Parent 

5. HHS Consent 

F. Petition Process 

1. Required Evidence 

2. No Contact 

3. Interview 

4. SIJ Petition Decision Timeframe 

Requirement 

5. Decision 

G. No Parental Immigration Benefits Based 

on Special Immigrant Juvenile 

Classification 

H. Revocation 

1. Revocation Based on Reunification With 

a Parent 

2. Implementation of Changes to the 

Revocation Grounds 

I. Adjustment of Status to Lawful 

Permanent Resident (Adjustment of 

Status) 

1. Eligibility 

2. Inadmissibility 

3. No Parental Immigration Rights Based 

on SIJ Classification 

4. No Contact 

5. Other Comments Related to Adjustment 

of Status 

IV. Statutory and Regulatory Requirements 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 


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1The Immigration Act of 1990, Public Law 101– 

649, 104 Stat. 4978 (Nov. 29, 1990), added the SIJ 

classification. Congress has amended the eligibility 

criteria for SIJ classification several times, as noted 

in Table 1. 

2The provisions to adjust status under INA 

section 245(h) were added by the Miscellaneous 

and Technical Immigration and Naturalization 

Amendments of 1991, Public Law 102–232, 105 

Stat. 1733 (Dec. 12, 1991). 

3The protection at INA section 287(h) for a 

petitioner seeking SIJ classification from being 

compelled to contact an alleged abuser, or the 

abuser’s family member, was added by the Violence 

Against Women and Department of Justice 

Reauthorization Act of 2005 (VAWA 2005), Public 

Law 109–162, 119 Stat. 2960 (Jan. 5, 2006). 

1. Background and Summary 

2. Provisions of the Rule and Impacts 

(a) Requirements at Time of Filing and 

Adjudication 

(b) DHS Consent 

(c) Qualifying Juvenile Court Orders 

(d) Dependency or Custody 

(e) HHS Specific Consent 

(f) Petition Requirements 

(g) Inadmissibility 

(h) Interviews 

(i) No Parental Immigration Rights 

(j) No Contact 

(k) Marriage as a Ground for Automatic 

Revocation 

(l) Timeframe for Decisions 

(m) Special Immigrant Juvenile Petition 

Filing and Adjudication Process 

3. Costs and Benefits of the Final Rule 

(a) Costs and Benefits of the Final Rule 

Relative to a Statutory Baseline 

(b) Costs and Benefits of the Final Rule 

Relative to No Action Baseline 

(c) Total Costs of the Final Rule 

B. Regulatory Flexibility Act 

C. Small Business Regulatory Enforcement 

Fairness Act of 1996 

D. Unfunded Mandates Reform Act of 1995 

E. Congressional Review Act 

F. Executive Order 13132 (Federalism) 

G. Executive Order 12988 (Civil Justice 

Reform) 

H. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

I. Family Assessment 

J. National Environmental Policy Act 

K. Paperwork Reduction Act 

VI. List of Subjects and Regulatory 

Amendments 

I. Executive Summary 

A. Purpose of the Regulatory Action 

DHS is amending its regulations 

governing the SIJ classification and 

related applications for adjustment of 

status to LPR (submitted on U.S. 

Citizenship and Immigration Services 

(USCIS) Form I–485, Application to 

Register Permanent Residence or Adjust 

Status), hereafter ‘‘adjustment of status.’’ 

Specifically, this rule revises DHS 

regulations at 8 CFR 204.11, 205.1, and 

245.1 to reflect statutory changes, 

modify certain provisions, codify 

existing policies, and clarify eligibility 

requirements. 

B. Legal Authority 

The Immigration and Nationality Act 

(INA), as amended, permits the 

Secretary of Homeland Security 

(Secretary) to classify as an SIJ 1 a 

noncitizen whom a juvenile court 

located in the United States has 

declared to be dependent on the 

juvenile court, or whom the juvenile 

court has legally committed to or placed 

under the custody of an agency or 

department of a State, or an individual 

or entity appointed by a State or 

juvenile court. See INA section 

101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). 

The juvenile court must determine that 

reunification with one or both parents is 

not viable due to abuse, neglect, 

abandonment, or a similar basis found 

under State law. Id. In addition, it must 

be determined in administrative or 

judicial proceedings that it would not be 

in the petitioner’s best interest to be 

returned to the country of nationality or 

last habitual residence of the petitioner 

or of their parent(s). See INA section 

101(a)(27)(J)(ii), 8 U.S.C. 

1101(a)(27)(J)(ii). Finally, the Secretary, 

through USCIS, must consent to SIJ 

classification. See INA section 

101(a)(27)(J)(iii), 8 U.S.C. 

1101(a)(27)(J)(iii). The timeframe for 

adjudicating SIJ petitions is 180 days. 

See TVPRA 2008 section 235(d)(2), 8 

U.S.C. 1232(d)(2). 

Upon classification as an SIJ, a 

noncitizen may be immediately eligible 

to apply for adjustment of status to LPR, 

if a visa number is available.2 See INA 

section 245(h), 8 U.S.C. 1255(h). Certain 

grounds of inadmissibility that would 

ordinarily prevent adjustment of status 

do not apply to those with SIJ 

classification. See INA section 245(h), 8 

U.S.C. 1255(h). The Secretary also may 

waive certain grounds of inadmissibility 

for those with SIJ classification. Id. 

DHS is prohibited from compelling 

SIJ petitioners or applicants for related 

adjustment of status to contact an 

alleged abuser, or family member of the 

alleged abuser, during the petition or 

application process. See INA section 

287(h), 8 U.S.C. 1357(h).3

The following table summarizes the 

statutory amendments implemented in 

this final rule: 

TABLE 1—SUMMARY OF STATUTORY AMENDMENTS TO SIJ CLASSIFICATION

Legislation Amendment 

The Immigration and Nationality Technical Corrections Act of 1994, Public 

Law 103–416, 108 Stat. 4319 (Jan. 

25, 1994).

• Expanded the group of people eligible for SIJ classification to include those a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State. 

The Departments of Commerce, Justice, 

and State, the Judiciary, and Related 

Agencies Appropriations Act, 1998 

(CJS 1998 Appropriations Act), Public 

Law 105–119, 111 Stat. 2440 (Nov. 

26, 1997).

• Required that dependency, commitment, or placement be due to abuse, neglect, or abandonment. 

• Added consent functions of the Attorney General (later changed to the Secretary) of ‘‘express consent’’ to the dependency order as a precondition to the grant of SIJ and ‘‘specific consent’’ to juvenile court jurisdiction to determine custody or placement of a person in the actual or constructive 

custody of the federal government (later modified by TVPRA 2008). 

The Violence Against Women and Department of Justice Reauthorization 

Act of 2005 (VAWA 2005), Public Law 

109–162, 119 Stat. 2960 (Jan. 5, 

2006).

• Protected a petitioner seeking SIJ classification by prohibiting DHS from compelling them to contact 

an alleged abuser, or family member of an alleged abuser. 

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 

2008 (TVPRA 2008), Public Law 110– 

457, 112 Stat. 5044 (Dec. 23, 2008).

• Created the requirement that a petitioner’s reunification with one or both parents not be viable due 

to abuse, neglect, abandonment, or a similar basis under State law (replaced a previous requirement to have ‘‘been deemed eligible . . . for long-term foster care’’). 

• Expanded the group of people eligible for SIJ classification to include those placed by a juvenile 

court with an individual or entity. 


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TABLE 1—SUMMARY OF STATUTORY AMENDMENTS TO SIJ CLASSIFICATION—Continued 

Legislation Amendment 

• Modified the consent requirements so that DHS consent is to the grant of SIJ classification and 

vested the former ‘‘specific consent’’ function with HHS. 

• Provided age-out protection so that USCIS cannot deny SIJ classification if someone was under 21 

years of age when the petition was filed. 

• Created a statutory timeframe of 180 days to adjudicate SIJ petitions. 

• Exempted SIJs from additional grounds of inadmissibility in relation to an application for adjustment 

of status. 

C. Summary of the Proposed Rule 

On September 6, 2011, DHS 

published a proposed rule in the 

Federal Register, proposing to amend 

the regulations governing the SIJ 

classification and related applications 

for adjustment of status to incorporate 

major statutory changes to the program. 

See Proposed rule; Special Immigrant 

Juvenile Petitions, 76 FR 54978 (Sept. 6, 

2011) (‘‘proposed rule’’). The proposed 

rule explained the changes that DHS 

was considering, including procedural 

requirements, and that DHS would 

ultimately finalize the regulatory 

changes through the rulemaking 

process. 

Specifically, the proposed rule sought 

to revise DHS regulations at 8 CFR 

204.11, 205.1, and 245.1 to: 

• Implement statutorily mandated 

changes by revising the existing 

eligibility requirements under the 

following statutes: 

Æ Immigration and Nationality 

Technical Corrections Act of 1994, 

Public Law 103–416, 108 Stat. 4319 

(Jan. 25, 1994); 

Æ Departments of Commerce, Justice, 

and State, the Judiciary, and Related 

Agencies Appropriations Act, 1998 (CJS 

1998 Appropriations Act), Public Law 

105–119, 111 Stat. 2440 (Nov. 26, 1997); 

Æ Violence Against Women and 

Department of Justice Reauthorization 

Act of 2005 (VAWA 2005), Public Law 

109–162, 119 Stat. 2960 (Jan. 5, 2006); 

and 

Æ William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008 (TVPRA 2008), Public Law 110– 

457, 122 Stat. 5044 (Dec. 23, 2008). 

• Clarify the use of the term 

‘‘dependent’’ as used in section 

101(a)(27)(J)(i) of INA, 8 U.S.C. 

1101(a)(27)(J)(i), including that such 

dependency, commitment, or custody 

must be in effect when a Petition for 

Amerasian, Widow(er), or Special 

Immigrant (Form I–360) is filed and 

must continue through the time of 

adjudication, unless the age of the 

petitioner prevents such continuation. 

• Clarify that the viability of parental 

reunification with one or both of the 

child’s parents due to abuse, neglect, or 

abandonment, or a similar basis under 

State law must be determined by the 

juvenile court based on applicable State 

law. 

• Clarify that DHS consent to the 

grant of SIJ classification is warranted 

only when the petitioner demonstrates 

that the State juvenile court 

determinations were sought primarily 

for the purpose of obtaining relief from 

abuse, neglect, abandonment or a 

similar basis under State law and not 

primarily for the purpose of obtaining 

lawful immigration status; and that the 

evidence otherwise demonstrates that 

there is a bona fide basis for granting SIJ 

classification. 

• Clarify that USCIS may seek or 

consider additional evidence if the 

evidence presented is not sufficient to 

establish a reasonable basis for DHS’s 

consent determination. 

• Remove automatic revocation under 

8 CFR 205.1(a)(3)(iv)(A) and (C) to the 

extent that they pertain to a juvenile’s 

age and are inconsistent with age-out 

protections under TVPRA 2008. 

• Implement statutory revisions 

exempting SIJ adjustment-of-status 

applicants from four additional grounds 

of inadmissibility and clarify grounds of 

inadmissibility that cannot be waived. 

• Improve the application process by 

clearly listing required evidence that 

must accompany Form I–360 and 

amend what constitutes supporting 

documentation; and 

• Make technical and procedural 

changes; and conform terminology. 

DHS reopened the comment period on 

October 16, 2019, for 30 days but did 

not modify these proposals. Special 

Immigrant Juvenile Petitions, 84 FR 

55250 (Oct. 16, 2019). Hereafter, DHS 

refers to the 2011 proposed rule and 

reopened comment period collectively 

as the notice of proposed rulemaking 

(NPRM). 

D. Summary of Changes From the 

NPRM to the Final Rule Provisions 

Following careful consideration of 

public comments received and relevant 

data provided by stakeholders, DHS has 

made several changes from the NPRM. 

DHS responds to each substantive 

public comment in detail later in this 

preamble and explains why it is 

adopting or declining the change 

suggested by the commenters. DHS is 

making the following changes from the 

proposed rule in this final rule: 

1. Section Heading 

(a) Special Immigrant Juvenile (SIJ) 

Classification 

The preamble in the NPRM explained 

that DHS used the term ‘‘dependency’’ 

in the proposed rule as encompassing 

dependency, commitment, or custody. 

76 FR 54979. Consistent with this 

definition, DHS styled the section 

heading for proposed 8 CFR 204.11 as 

‘‘Special immigrant classification for 

certain aliens declared dependent on a 

juvenile court (Special Immigrant 

Juvenile).’’ Commenters wrote that this 

section heading was misleading and 

requested that it be amended to reflect 

the statutory language at INA section 

101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). As 

explained previously, the statute 

permits USCIS to grant SIJ classification 

to a noncitizen whom a juvenile court 

has declared to be dependent on the 

juvenile court, or whom the juvenile 

court has legally committed to or placed 

under the custody of an agency or 

department of a State, individual, or 

entity. In response to these comments, 

DHS has simplified and amended the 

section heading of the regulation in the 

final rule to ‘‘Special immigrant juvenile 

classification.’’ See new 8 CFR 204.11. 

2. Definitions 

(a) Definitions of ‘‘State’’ and ‘‘United 

States’’ 

In order to establish eligibility for SIJ 

classification, a petitioner must submit 

qualifying juvenile court order(s) issued 

under State law. DHS proposed the 

definition of ‘‘State’’ in the NPRM as 

including an Indian tribe, tribal 

organization, or tribal consortium 

operating a program under a plan 

approved under 42 U.S.C. 671. See 

proposed 8 CFR 204.11(a), 76 FR 54985. 

After reviewing the public comments, 

DHS has amended the definition of 

‘‘State’’ by also incorporating the 


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Federal Register / Vol. 87, No. 45 / Tuesday, March 8, 2022 / Rules and Regulations 13069 

definition from INA section 101(a)(36), 

8 U.S.C. 1101(a)(36), as including the 

District of Columbia, Puerto Rico, 

Guam, the Virgin Islands of the United 

States, and the Commonwealth of the 

Northern Mariana Islands. In response 

to comments, the final rule clarifies that 

the term ‘‘United States’’ also means the 

definition from INA section 101(a)(38), 

8 U.S.C. 1101(a)(38), as the continental 

United States, Alaska, Hawaii, Puerto 

Rico, Guam, the Virgin Islands of the 

United States, and the Commonwealth 

of the Northern Mariana Islands. New 8 

CFR 204.11(a). 

(b) Definitions of ‘‘Juvenile Court’’ and 

‘‘Judicial Determination’’ 

DHS proposed retaining the definition 

of ‘‘juvenile court’’ from the previous 

regulation, which defines ‘‘juvenile 

court’’ as ‘‘a court located in the United 

States having jurisdiction under State 

law to make judicial determinations 

about the custody and care of 

juveniles.’’ DHS received numerous 

comments suggesting that the term 

‘‘juvenile court’’ should be modified to 

align with INA section 101(a)(27)(J)(i), 8 

U.S.C. 1101(a)(27)(J)(i), which 

prescribes eligibility for SIJ 

classification based on a juvenile court’s 

dependency or custody determination. 

DHS agrees that defining the term 

‘‘juvenile court’’ to mirror the language 

of the statute would be clearer. The 

definition of ‘‘juvenile court’’ in the 

final rule is ‘‘a court located in the 

United States that has jurisdiction under 

State law to make judicial 

determinations about the dependency 

and/or custody and care of juveniles.’’ 

New 8 CFR 204.11(a). DHS has 

incorporated the definition for the term 

‘‘judicial determination’’ as ‘‘a 

conclusion of law made by a juvenile 

court’’ into the final rule for further 

clarity. Id. 

(c) Definitions of ‘‘Petition’’ and 

‘‘Petitioner’’ 

Commenters requested further clarity 

on the definition of the term 

‘‘petitioner’’ because either a juvenile 

(the self-petitioner) or a person acting 

on the juvenile’s behalf can file an SIJ 

petition via Form I–360, Petition for 

Amerasian, Widow(er), or Special 

Immigrant. The proposed regulatory text 

for petition procedures states that ‘‘[t]he 

alien, or an adult acting on the alien’s 

behalf, may file the petition for special 

immigrant juvenile classification.’’ 

Proposed 8 CFR 204.11(d), 76 FR 54985. 

This language, however, did not clarify 

which individual DHS would consider 

as the petitioner—a noncitizen, or an 

individual acting on the noncitizen’s 

behalf. DHS has therefore amended the 

final rule to include in its definition 

section the term ‘‘petitioner’’ as ‘‘the 

noncitizen seeking special immigrant 

juvenile classification,’’ and the term 

‘‘petition’’ as ‘‘the form designated by 

USCIS to request classification as a 

special immigrant juvenile and the act 

of filing the request.’’ DHS also has 

renamed the ‘‘Petition procedures’’ 

paragraph heading at proposed 8 CFR 

204.11(d) to ‘‘Petition requirements’’ in 

the final rule, and modified paragraph 

(d)(1) to require ‘‘[a] petition by or on 

behalf of a juvenile, filed on the form 

prescribed by USCIS in accordance with 

the form instructions.’’ New 8 CFR 

204.11(d). 

3. Eligibility Requirements for 

Classification as an SIJ 

(a) Eligibility Requirements That Must 

Be Met at the Time of Filing and 

Adjudication 

DHS proposed that a petitioner must 

be under 21 years of age at the time of 

filing and subject to a dependency or 

custody order that is in effect at the time 

of filing and continues through the time 

of adjudication. See proposed 8 CFR 

204.11(b), 76 FR 54985. The preamble to 

the NPRM stated that the proposed rule 

would continue to apply the 

requirement in 8 CFR 103.2(b) that an 

applicant or petitioner must establish 

that they are eligible for the requested 

benefit at the time of filing the benefit 

request and must continue to be eligible 

through adjudication to the requirement 

that a juvenile remain unmarried both at 

the time of filing the SIJ petition and 

adjudication. DHS did not specifically 

include this requirement for SIJ 

eligibility in the proposed regulatory 

text because 8 CFR 103.2(b) applies to 

eligibility for SIJ classification as it does 

to all USCIS benefit requests. 

Nevertheless, DHS has clarified the 

regulatory text in the final rule by 

providing that a petitioner must remain 

unmarried at the time of filing through 

adjudication of the SIJ petition. See new 

8 CFR 204.11(b)(2). 

4. Juvenile Court Order(s) 

(a) Dependency or Custody 

The proposed rule discussed custody, 

commitment, and dependency. See 

proposed 8 CFR 204.11(b)(1)(iv), 76 FR 

54985. DHS interprets custody to 

encompass commitment. Therefore, it is 

unnecessary and redundant to use the 

term ‘‘commitment’’ also, and in the 

final rule, DHS exclusively uses the 

terms ‘‘dependency’’ and ‘‘custody.’’ 

See new 8 CFR 204.11(c). 

(b) Qualifying Parental Reunification 

Determination 

The eligibility provisions of the 

proposed rule required that a petitioner 

be the subject of a State juvenile court 

determination, under applicable State 

law, and that reunification with one or 

both parents not be viable due to abuse, 

neglect, abandonment, or a similar basis 

under State law. See proposed 8 CFR 

204.11(b), 76 FR 54985. DHS received 

several comments requesting that DHS 

clarify that termination of parental 

rights is not a prerequisite for a 

qualifying determination on the 

viability of parental reunification. In 

response to those comments, DHS has 

amended the final rule to clarify that 

‘‘[t]he court is not required to terminate 

parental rights to determine that 

parental reunification is not viable.’’ See 

new 8 CFR 204.11(c)(1)(ii). 

(c) Best Interest Determination 

DHS has long interpreted that the best 

interest determination is not a 

repatriation determination made by a 

Federal entity with authority over 

immigration determinations, but rather 

is a determination by a State court or 

administrative body regarding the best 

interest of the child. See Immigration 

and Naturalization Service (INS), 

Special Immigrant Status; Certain 

Aliens Declared Dependent on a 

Juvenile Court; Revocation of Approval 

of Petitions; Bona Fide Marriage 

Exemption to Marriage Fraud 

Amendments; Adjustment of Status, 

Final Rule, 58 FR 42843, 42848 (Aug. 

12, 1993) (‘‘the Service believes that the 

decision regarding the best interest of 

the beneficiary should be made by the 

juvenile court or the social service 

agency officials recognized by the 

juvenile court, not by the immigration 

judge or other immigration officials’’). 

To further clarify this interpretation, 

and in response to comments, DHS 

added the following language for best 

interest determinations: ‘‘Nothing in 

this part should be construed as altering 

the standards for best interest 

determinations that juvenile court 

judges routinely apply under relevant 

State law.’’ New 8 CFR 204.11(c)(2)(ii). 

(d) Juvenile Court Order Validity 

DHS proposed an exception to the 

requirement that the juvenile court 

order be in effect at the time of filing 

and continue through the time of 

adjudication. This exception allows a 

petitioner to remain eligible for SIJ 

classification if the juvenile court order 

is no longer valid after filing because 

‘‘the age of the petitioner prevents such 

continuation.’’ See proposed 8 CFR 


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204.11(b)(1)(iv), 76 FR 54985. Following 

the publication of the proposed rule in 

2011, the government entered into a 

‘‘Stipulation Settling a Motion for ClassWide Enforcement’’ of the 2010 

settlement agreement in Perez-Olano, et 

al. v. Holder, et al. (Perez-Olano 

Settlement Agreement). That stipulation 

contains a provision that a petitioner 

whose juvenile court order terminated 

solely due to age prior to filing the SIJ 

petition remains eligible. Perez-Olano, 

et al. v. Holder, et al., Case No. CV 05– 

3604 (C.D. Cal. 2015) (emphasis added). 

Following this Stipulation, and in 

response to public comments which 

DHS agrees reflect a legally permissible 

interpretation of the statute, DHS has 

incorporated into the final rule an 

exception to the requirement that the 

juvenile court order be valid at the time 

of filing and adjudication for petitioners 

who, because of their age, no longer 

have a valid juvenile court order either 

prior to or subsequent to filing the SIJ 

petition. See new 8 CFR 

204.11(c)(3)(ii)(B). Additionally, DHS 

has included another exception in 

response to public comments that 

allows petitioners to remain eligible for 

SIJ classification if juvenile court 

jurisdiction terminated because 

adoption, placement in permanent 

guardianship, or another type of child 

welfare permanency goal (other than 

reunification with the parent or parents 

with whom the court previously found 

that reunification was not viable) was 

reached. See new 8 CFR 

204.11(c)(3)(ii)(A). 

5. Petition Requirements 

(a) Evidence of Age 

In the preamble to the NPRM, DHS 

listed the types of documents that could 

be accepted as evidence of a petitioner’s 

age, including a birth certificate, 

passport, official foreign identity 

document issued by a foreign 

government, or other document that, in 

the discretion of USCIS, establishes the 

petitioner’s age. 76 FR 54982. In 

response to numerous public comments 

requesting that DHS allow a petitioner 

to submit secondary evidence or 

affidavits as prescribed in 8 CFR 

103.2(b)(2), DHS has added both the list 

of documents included in the NPRM 

preamble and that secondary evidence 

or affidavits may be submitted to the 

final rule. See new 8 CFR 204.11(d)(2). 

(b) Similar Basis 

In the preamble to the proposed rule, 

DHS explained that ‘‘[i]f a juvenile court 

order includes a finding that 

reunification with one or both parents is 

not viable under State law [due to a 

similar basis], the petitioner must 

establish that this State law basis is 

similar to a finding of abuse, neglect, or 

abandonment.’’ 76 FR 54981. The 

preamble further stated that ‘‘[t]he 

nature and elements of the State law 

must be similar to the nature and 

elements of abuse, abandonment, or 

neglect.’’ Id. DHS received numerous 

comments requesting further 

clarification and expressing concern 

that such a requirement of equivalency 

could result in ineligibility 

determinations for vulnerable children 

found by a juvenile court to be subjected 

to parental maltreatment. In response to 

these comments, DHS provides in the 

final rule that the petitioner can provide 

evidence of a similar basis through the 

juvenile court’s determination as to how 

the basis is legally similar to abuse, 

neglect, or abandonment under State 

law; or other relevant evidence that 

establishes the juvenile court made a 

judicial determination that the legal 

basis is similar to abuse, neglect, or 

abandonment under State law. New 8 

CFR 204.11(d)(4). 

(c) DHS Consent 

DHS received numerous comments 

disagreeing with the interpretation of 

the consent function in the NPRM, with 

some commenters expressing concern 

that it impermissibly allows USCIS 

adjudicators to look behind the court’s 

order. Other commenters disagreed that 

the consent determination included a 

discretionary element. The NPRM 

proposed that in determining whether 

USCIS would consent to the grant of SIJ 

classification, ‘‘USCIS will consider, 

among other permissible discretionary 

factors, whether the alien has 

established, based on the evidence of 

record, that the State court order was 

sought primarily to obtain relief from 

abuse, neglect, abandonment, or a 

similar basis under State law and not 

primarily for the purpose of obtaining 

lawful immigration status . . . .’’ 

Proposed 8 CFR 204.11(c)(1)(i), 76 FR 

54985. The NPRM also proposed that 

the ‘‘petitioner has the burden of proof 

to show that discretion should be 

exercised in his or her favor.’’ Proposed 

8 CFR 204.11(c)(1)(ii), 76 FR 54985. In 

response to comments, DHS made two 

key revisions to the consent provision in 

the final rule. First, DHS removed 

reference to consent as a discretionary 

function and clarified that the request 

for SIJ classification ‘‘must be bona 

fide.’’ New 8 CFR 204.11(b)(5). Second, 

in recognition that petitioners can have 

dual or mixed motivations for seeking 

the juvenile court’s determinations, 

DHS modified the consent provision to 

require the petitioner ‘‘to establish that 

a primary reason the required juvenile 

court determinations were sought was to 

obtain relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law.’’ Id. (emphasis added). 

Additionally, DHS proposed in the 

NPRM that a dependency or custody 

order and specific findings of fact were 

examples of evidence USCIS would 

consider in determining whether USCIS’ 

consent is warranted. See proposed 8 

CFR 204.11(d)(3), 76 FR 54985. In 

response to public comments requesting 

clarification of the evidence DHS will 

consider in its consent determination, 

the final rule provides that a petitioner 

must submit the court-ordered or 

recognized relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law granted by the juvenile 

court as well as the factual basis for the 

juvenile court’s determinations. New 8 

CFR 204.11(d)(5)(i) and (ii). The final 

rule also clarifies that ‘‘USCIS may 

withhold consent if evidence materially 

conflicts with the eligibility 

requirements [for SIJ classification] . . . 

such that the record reflects that the 

request for SIJ classification was not 

bona fide.’’ New 8 CFR 204.11(b)(5). 

(d) U.S. Department of Health and 

Human Services (HHS) Consent 

DHS proposed that HHS consent is 

required only if the juvenile court 

determines or alters the child’s custody 

status or placement. Proposed 8 CFR 

204.11(c)(2), 76 FR 54985 (using 

language from Perez-Olano, et al. v. 

Holder, et al., Case No. CV 05–3604 

(C.D. Cal. 2010)). In response to public 

comments requesting clarification on 

when HHS consent is required, DHS has 

clarified in the final rule to more 

accurately reflect the limited 

circumstances under which USCIS 

requires evidence of HHS consent as 

discussed at paragraphs 7 and 17 of the 

Perez-Olano Settlement Agreement. 

New 8 CFR 204.11(d)(6). The Settlement 

Agreement clarifies that the HHS 

consent requirement is limited to where 

the juvenile court is changing the 

custodial placement of a petitioner in 

HHS custody. See Perez-Olano, et al. v. 

Holder, et al., Case No. CV 05–3604 at 

¶ 7 and 17 (C.D. Cal. 2010). Therefore, 

the final rule provides that HHS consent 

is required only if the juvenile court 

alters the child’s custody status or 

placement. New 8 CFR 204.11(d)(6)(ii). 

6. No Contact 

(a) Clarification of No Contact Provision 

DHS proposed to codify the statutory 

requirement at section 287(h) of the 

INA, 8 U.S.C. 1357(h), that prohibits 

DHS from requiring that the petitioner 


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contact their alleged abuser at any stage 

of the SIJ petition process. One 

commenter recommended that DHS 

modify the regulatory text to more 

closely track the language at INA section 

287(h), 8 U.S.C. 1357(h), which also 

includes individuals who battered, 

neglected, or abandoned the child as 

individuals that petitioners cannot be 

compelled to contact by DHS in relation 

to their SIJ matter. DHS agrees with this 

commenter and has incorporated 

language at new 8 CFR 204.11(e) more 

closely tracking the statutory language. 

In addition, for alignment with INA 

section 101(a)(27)(J)(i) regarding the 

eligibility requirement that reunification 

not be viable with a petitioner’s 

parent(s) due to ‘‘abuse, neglect, 

abandonment, or a similar basis found 

under State law,’’ DHS is including the 

term ‘‘abused’’ at new 8 CFR 204.11(e). 

7. Interview 

(a) Ability of Trusted Adult, Attorney, 

or Representative To Provide a 

Statement 

DHS proposed to permit a trusted 

adult, attorney, or representative to 

provide a statement at the petitioner’s 

interview for SIJ classification. Proposed 

8 CFR 204.11(e)(2), 76 FR 54986. 

However, commenters opposed this 

provision due to concerns that it would 

violate due process protections for the 

petitioner. Therefore, DHS has removed 

this provision from the final rule. The 

change was made to limit the ability of 

a non-attorney or representative to make 

a statement that could impact the 

outcome of a case given commenters’ 

concerns that a ‘‘trusted adult’’ may not 

have the consent of the child to 

participate in the child’s case and is not 

subject to any ethical rules or 

disciplinary action should they engage 

in misconduct. DHS does not, however, 

seek to inhibit the petitioner’s 

representation by their attorney or 

representative, and as further addressed 

later in this preamble, an attorney or 

accredited representative is still 

permitted to provide a statement. DHS, 

has also retained the provision that the 

petitioner may be accompanied by a 

trusted adult at the interview. See new 

8 CFR 204.11(f). 

(b) Presence of Attorney or Accredited 

Representative at the Interview 

DHS proposed that: ‘‘USCIS, in its 

discretion, may place reasonable limits 

on the number of persons who may be 

present at the interview.’’ Proposed 8 

CFR 204.11(e)(1), 76 FR 54986. A 

number of commenters expressed 

concern with this provision and viewed 

this language as permitting USCIS to 

interview a child alone without their 

attorney or accredited representative. 

DHS did not intend to limit a 

petitioner’s right to have their attorney 

or accredited representative present, 

and DHS has modified the final 

regulatory text for clarity, adding that 

although USCIS may limit the number 

of persons present at the interview, ‘‘the 

petitioner’s attorney or accredited 

representative of record may be 

present.’’ New 8 CFR 204.11(f). This is 

consistent with the right to 

representation as codified at 8 CFR 

103.2(a)(3) and 292.5(b). 

8. Time for Adjudication 

(a) Clarification Regarding Adjudication 

Processing Timeframes 

DHS proposed codifying the statutory 

180-day timeframe on USCIS decisions 

and proposed when the period would 

start and stop. See 8 U.S.C. 1232(d)(2); 

proposed 8 CFR 204.11(h), 76 FR 54986. 

Several commenters asked DHS to 

reconsider whether temporarily pausing 

or restarting the 180-day period is 

legally permissible. These comments 

reflect some level of confusion regarding 

the proposed requirements for the 180- 

day timeframe, as DHS did not intend 

to indicate that it would be applying a 

different standard with regard to the 

impact on required processing times for 

SIJ petitioners versus petitioners for all 

other immigration benefits. As 

explained in the NPRM, the 180-day 

benchmark would take ‘‘into account 

general USCIS regulations pertaining to 

receipting of petitions, evidence and 

processing, and assuming the 

completeness of the petition and 

supporting evidence.’’ See proposed 8 

CFR 204.11(h), 76 FR 54983. To 

alleviate confusion, DHS has 

incorporated into the final rule a 

reference to the regulations at 8 CFR 

103.2(b)(10)(i) regarding how requests 

for additional or initial evidence or to 

reschedule an interview affect the time 

period imposed for processing, along 

with clarifying that the 180-day period 

does not begin until USCIS has received 

all required initial evidence as listed at 

new 8 CFR 204.11(d). See new 8 CFR 

204.11(g)(1). 

(b) Impact of Requests for Evidence for 

Adjustment of Status Applications on 

Processing Timeframes 

In response to a number of comments, 

DHS is clarifying the impact of requests 

for evidence (RFEs) for adjustment of 

status applications on the 180-day 

timeframe for adjudication of the SIJ 

petition. New 8 CFR 204.11(g)(2). DHS 

agrees with commenters that where a 

petition for SIJ classification and an 

application for related adjustment of 

status are pending simultaneously, an 

RFE that relates only to the application 

for adjustment should not pause the 

180-day clock for adjudication of the SIJ 

petition. The 180-day period relates 

only to the adjudication of the SIJ 

petition; therefore, RFEs, notices of 

intent to deny (NOIDs), or other requests 

unrelated to the SIJ petition itself do not 

impact the 180-day timeframe. Id. 

9. No Parental Immigration Benefits 

Based on SIJ Classification 

(a) Application of Prohibition to All of 

Petitioner’s Natural and Prior Adoptive 

Parents 

DHS proposed that natural or prior 

adoptive parents of the individual 

seeking or granted SIJ classification 

cannot be accorded any right, privilege, 

or status under the INA by virtue of 

their parentage. Proposed 8 CFR 

204.11(g), 76 FR 54986. Several 

commenters asked DHS to revisit its 

interpretation that the INA prohibits any 

parent, including a non-abusive parent, 

from gaining lawful status through the 

individual granted SIJ classification. In 

response, DHS notes that the statutory 

language is clear that ‘‘no natural parent 

or prior adoptive parent of any alien 

provided special immigrant juvenile 

status . . . shall thereafter, by virtue of 

such parentage, be accorded any right, 

privilege, or status under this Act.’’ INA 

section 101(a)(27)(J)(iii)(II), 8 U.S.C. 

1101(a)(27)(J)(iii)(II). The statute accords 

no preference to a parent who did not 

participate in the abuse or neglect. DHS 

has clarified the final rule by providing 

that the ‘‘prohibition applies to all of the 

petitioner’s natural and prior adoptive 

parent(s).’’ New 8 CFR 204.11(i). 

10. Revocation 

(a) Moved Provisions on Automatic 

Revocation From 8 CFR 205.1(a)(3)(iv) 

to 8 CFR 204.11(j)(1) 

DHS proposed to codify an automatic 

revocation provision for SIJ 

classification at 8 CFR 205.1, which 

contains the provisions for automatic 

revocation of immigration benefits 

generally. In the final rule, DHS has 

incorporated the revocation provisions 

for SIJ classification at 8 CFR 204.11, 

where the rest of the regulations 

governing SIJ petitions are located, for 

ease of reference and to retain all 

regulations pertaining to SIJ petitions in 

the same location. To minimize 

confusion, DHS has revised 8 CFR 

205.1(a)(3)(iv) to provide that the 

automatic revocation provisions for SIJ 

classification are at 8 CFR 204.11(j)(1). 


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(b) Changes to the Grounds for 

Automatic Revocation 

DHS proposed removal of the 

automatic revocation grounds that relate 

to a SIJ beneficiary’s age for consistency 

with TVPRA 2008 section 235(d)(6), the 

‘‘Transition Rule’’ provision, which 

provides that DHS cannot deny SIJ 

classification based on age if the 

noncitizen was a child on the date on 

which the noncitizen filed the petition. 

DHS also proposed revising the 

revocation ground based on a 

termination of the SIJ beneficiary’s 

eligibility for long-term foster care as 

this is no longer a requirement under 

INA section 101(a)(27)(J), 8 U.S.C. 

1101(a)(27)(J). Proposed 8 CFR 

205.1(a)(3)(iv)(A),(B),(C), 76 FR 54986. 

In the final rule, DHS has incorporated 

these modifications to the bases for 

automatic revocation. New 8 CFR 

204.11(j)(i),(ii). In response to public 

comments, DHS also has removed 

marriage of the SIJ beneficiary as a basis 

for automatic revocation, amending its 

prior interpretation of INA 245(h). 

(c) Notice and Evidentiary Requirements 

DHS added to the final rule clarifying 

language regarding revocation on notice 

and automatic revocation. New 8 CFR 

204.11(j)(1) and 205.1(a)(3)(iv). This 

language provides information about 

automatic revocation of SIJ petitions by 

incorporating by reference the general 

automatic revocation provisions at 8 

CFR 205.1. 

(d) Revocation on Notice 

DHS did not propose changes to 

revocation upon notice in the NPRM. 

However, for maximum clarity, DHS has 

added language that USCIS may revoke 

an approved SIJ petition upon notice at 

new 8 CFR 204.11(j)(2), incorporating by 

reference the general provisions for 

revocation on notice at 8 CFR 205.2. As 

beneficiaries of SIJ classification have 

always been subject to the provisions for 

revocation on notice at 8 CFR 205.2, this 

is a technical change to have all 

revocation provisions for SIJs in 8 CFR 

204.11. 

11. Eligibility for Adjustment of Status 

(a) Requirements for SIJ-Based 

Adjustment of Status 

In response to comments, DHS has 

revised 8 CFR 245.1(e)(3) to provide 

separate standards for SIJ-based 

adjustment of status. DHS also has 

added new 8 CFR 245.1(e)(3)(i) to clarify 

that a noncitizen who has been granted 

SIJ classification will be deemed 

paroled into the United States for the 

limited purpose of meeting one of the 

eligibility requirements for SIJ-based 

adjustment of status. 

(b) Bars to Adjustment, Inadmissibility, 

and Waivers 

DHS received many public comments 

regarding the proposal that only certain 

grounds of inadmissibility could be 

waived for humanitarian purposes, 

family unity, or when it is otherwise in 

the public interest under INA section 

245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B), and 

that the grounds not listed under this 

statutory provision are unwaivable for 

SIJ adjustment applicants. See 76 FR 

54983. Commenters disagreed with this 

interpretation and wrote that pursuant 

to INA section 212, 8 U.S.C. 1182, an 

applicant classified as an SIJ may apply 

for a waiver for any applicable ground 

of inadmissibility for which a waiver is 

available. The commenters stated that 

while certain grounds of inadmissibility 

cannot be waived under INA section 

245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B), they 

can be waived under other waiver 

provisions of the INA, such as INA 

section 212(h). In response to these 

comments, in the final rule DHS has 

modified its interpretation of INA 

section 245(h)(2)(B) and now clarifies 

that nothing in the final rule should be 

construed to bar an applicant classified 

as an SIJ from a waiver for which the 

applicant may be eligible pursuant to 

INA section 212. 

DHS has also modified 8 CFR 

245.1(e)(3) to expand when a waiver at 

INA section 245(h)(2)(B) is available for 

inadmissibility under section 212(a)(2) 

based on the ‘‘simple possession 

exception.’’ DHS had proposed in the 

NPRM that a waiver is available for 

inadmissibility under INA section 

212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) 

(controlled substance traffickers), if the 

offense is related to a single offense of 

simple possession of 30 grams or less of 

marijuana. See proposed 8 CFR 

245.1(e)(3), 76 FR 54983, 54986. The 

simple possession exception was 

applied in the proposed rule to only 

INA section 212(a)(2)(C) based on a 

plain language reading of INA section 

245(h)(2)(B), which provides that in 

determining an SIJ’s admissibility as an 

immigrant: 

[T]he Attorney General may waive other 

paragraphs of section 212(a) (other than 

paragraphs (2)(A), (2)(B), (2)(C) (except 

for so much of such paragraph as related 

to a single offense of simple possession 

of 30 grams or less of marijuana), (3)(A), 

(3)(B), (3)(C), and (3)(E)) in the case of 

individual aliens for humanitarian 

purposes, family unity, or when it is 

otherwise in the public interest. 

In the final rule, DHS has expanded 

application of the simple possession 

exception to the grounds of 

inadmissibility under INA section 

212(a)(2)(A), 8 U.S.C. 1182(a)(2)(A) 

(conviction of certain crimes), INA 

section 212(a)(2)(B), 8 U.S.C. 

1182(a)(2)(B) (multiple criminal 

convictions), and INA section 

212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) 

(controlled substance traffickers). See 

new 8 CFR 245.1(e)(3)(v)(A). This 

modification was the result of a recent 

Board of Immigration Appeals decision 

in Matter of Moradel, which conducted 

a statutory analysis of the scope of the 

simple possession exception under INA 

section 245(h)(2)(B) and concluded that 

it ‘‘applies to all of the provisions listed 

under section 212(a)(2)’’ and that 

‘‘Congress intended the ‘simple 

possession’ exception in section 

245(h)(2)(B) to be applied broadly.’’ 28 

I&N Dec. 310, 314–315 (BIA 2021). 

(c) No Parental Immigration Benefits 

Based on SIJ Classification 

DHS has provided standards that 

relate to SIJ-based adjustment of status 

and incorporated them into 8 CFR 

245.1(e)(3) in response to comments that 

the proposed rule conflated standards 

for SIJ classification and SIJ-based 

adjustment of status. For clarity, and 

because the prohibition on parental 

immigration benefits applies to SIJ 

petitioners and applicants for related 

adjustment of status, DHS has amended 

8 CFR 245.1(e)(3)(vi) to add the same 

text used at new 8 CFR 204.11(i). 

(d) No Contact 

Several commenters requested that 

DHS extend the prohibition in INA 

section 287(h), 8 U.S.C. 1357(h), against 

USCIS compelling SIJ petitioners to 

contact their alleged abuser(s) to the 

proceedings related to SIJ-based 

adjustment of status. DHS agrees that it 

is reasonable to extend this prohibition 

to the adjustment of status proceedings 

given that adjustment of status 

applications may be pending 

concurrently with SIJ petitions. DHS has 

revised 8 CFR 245.1(e)(3)(vii) to 

incorporate the no contact provision. 

E. Summary of Costs and Benefits 

The provisions of the final rule 

subject to this regulatory impact 

analysis will either affect a petitioners’ 

eligibility or directly alter the 

petitioning and adjudication process. 

DHS expects the final rule to affect the 

following stakeholder groups: 

Petitioners for SIJ; State juvenile courts 

and appellate courts; and the Federal 

Government. The population of 

juveniles interested in attaining SIJ 


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4 8 CFR 204.11 was amended in 2009 to eliminate 

reference to legacy INS in accordance with the 

creation of DHS. 74 FR 26937 (June 5, 2009). 

5Six additional comments were received but not 

posted on www.regulations.gov or considered by 

DHS because they were identified as being 

duplicate, irrelevant, or internal comments. 

classification, adjusting status, and 

obtaining lawful work authorization are 

required to initially submit Form I–360. 

The cost of the final rule affects newly 

eligible SIJ petitioners under the no 

action baseline. The provisions of the 

final rule subject to this regulatory 

impact analysis are examined against 

two baselines: (1) The pre statutory 

baseline; and (2) the no action baseline. 

The pre statutory baseline would 

evaluate the clarifications in petitioners’ 

eligibility made by TVPRA 2008. In 

analyzing each provision against the pre 

statutory baseline, DHS finds that these 

clarificatory changes have no 

quantifiable impact on eligibility. Stated 

alternatively, in the absence of the 

TVPRA 2008 provisions codified by this 

rule, DHS has no evidence suggesting 

SIJ trends would have behaved 

differently in the intervening years. 

Consequently, this analysis focuses on 

the no action baseline and those 

regulatory provisions affecting the 

petitioning-adjudicating process and 

then analyzes the historical growth of 

demand for and grants of SIJ 

classification in order to assess the 

benefits and costs accruing to each 

stakeholder. 

Relative to the no action baseline, the 

final rule will impose costs on a group 

of petitioners who will now be eligible 

to submit Form I–601, Form I–485 and 

Form I–765 once they already have an 

approved SIJ classification. This final 

rule will allow SIJ beneficiaries who get 

married prior to applying for LPR status 

to remain eligible to obtain permanent 

residence. This rule will also allow SIJ 

beneficiaries who have simple 

possession offenses to submit Form 

I–601 to apply for a waiver of 

inadmissibility under any of the 

provisions listed at INA section 

212(a)(2), 8 U.S.C. 1182(a)(2). DHS 

assumes that every petitioner who will 

not have their SIJ classification revoked 

because of marriage will file Form I–485 

which will result in new costs (and 

benefits) to those petitioners. 

The changes in this final rule will not 

impact Form I–360 petitioners currently 

applying for SIJ classification under the 

no action baseline, however the impacts 

will be discussed in the pre statutory 

baseline discussion. The changes in this 

final rule will update regulations to 

reflect statutory changes, modify certain 

provisions, codify existing policies, 

clarify eligibility requirements, and will 

not impact children applying for SIJ 

classification. DHS has required this 

additional evidence since the TVPRA 

2008. Due to data limitations that 

preclude identification of the unrelated 

factors that explain the changes in the 

volume of petitioners observed over 

time, DHS is limited in its ability to 

assess Form I–360 data. The primary 

benefit of the rule to USCIS is greater 

consistency with statutory intent, and 

efficiency. 

II. Background 

A. Special Immigrant Juvenile (SIJ) 

Classification 

Congress created the SIJ classification 

through the Immigration Act of 1990 to 

provide humanitarian protection for 

certain abused, neglected, or abandoned 

juveniles in the child welfare system 

who were eligible for long-term foster 

care. Through several legislative 

amendments, this protection evolved to 

include juveniles outside the foster care 

system. The statutory provisions for SIJ 

classification at INA section 

101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), 

require a juvenile court determination 

that: 

• The juvenile is dependent on the 

court, or is under the custody of a State 

agency or department or an individual 

or entity appointed by the court; 

• Reunification with one or both of 

the juvenile’s parents is not viable due 

to abuse, neglect, abandonment, or a 

similar basis under State law; and 

• It would not be in the juvenile’s 

best interest to return to the juvenile’s 

(or their parent’s) country of nationality 

or last habitual residence. 

In addition, the juvenile must be 

under 21 years of age and unmarried. SIJ 

classification may be granted only upon 

the consent of the Secretary of 

Homeland Security, through USCIS. 

A petitioner who has been classified 

as an SIJ is eligible to apply for 

adjustment of status. Petitioners for SIJ 

classification do not have the ability to 

include other family members who may 

derive LPR status based on their status 

(derivatives) on their petition, nor are 

they ever eligible to sponsor their 

natural or prior adoptive parents for any 

immigration benefit. 

The previous regulations governing 

SIJ classification at 8 CFR 204.11 were 

published in in 1993.4 58 FR 42843. 

This rule updates the regulations as 

required by statutory amendments to the 

SIJ statute since that time and further 

aligns the benefit with the statutory 

purpose of providing humanitarian 

protection to eligible child survivors of 

parental abuse, abandonment, or 

neglect. 

B. Final Rule 

DHS adopts most of the regulatory 

amendments proposed in the NPRM and 

makes key clarifying changes based on 

public comments. DHS explains in this 

rule why we are making changes or 

adopting the proposed regulatory 

amendments without change. The 

changes to the regulatory text are 

summarized previously in Section I, and 

they are discussed in further detail later 

in Section III. This final rule does not 

respond to comments that are general in 

nature or seek a change in U.S. laws, 

regulations, or agency policies that are 

unrelated to the SIJ classification or SIJbased adjustment of status. This final 

rule also does not change the 

procedures or policies of other Federal 

agencies or State courts, nor does it 

resolve issues outside the scope of the 

rulemaking. All comments can be 

reviewed at the Federal Docket 

Management System at https://

www.regulations.gov, docket number 

USCIS–2009–0004. 

III. Response to Public Comments on 

Proposed Rule 

A. Summary of Public Comments 

On October 16, 2019, DHS reopened 

the comment period on the proposed 

rule for 30 days to provide the public 

with further opportunity to comment on 

the proposed rule. 84 FR 55250 (Oct. 16, 

2019). During the initial comment 

period for the proposed rule, DHS 

received 57 public comments. DHS 

received an additional 77 comments on 

the proposed rule during the reopened 

comment period. In total, between the 

two comment periods, DHS received 

134 comments.5 DHS has reviewed all 

134 of the public comments received 

and addresses them in this final rule. 

B. General and Preliminary Matters 

1. General Support for the Proposed 

Rule 

Comment: Several commenters 

expressed general support of SIJ 

classification and favored finalizing the 

proposed rule and protecting vulnerable 

children in our society. Two 

commenters wrote that they appreciated 

DHS incorporating the protections and 

expansions from TVPRA 2008. 

Response: DHS appreciates 

commenters’ general support for this 

rulemaking and for its ongoing efforts to 

protect vulnerable children in 

accordance with the text and purpose of 

the statute. 

Comment: Two commenters indicated 

that they supported the proposed rule 

because the clarification of certain terms 

and elimination of ambiguous language 


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aids in understanding and prevents 

unintended consequences in the 

interpretation of the regulation by the 

relevant authorities. 

Response: DHS appreciates 

commenters’ support of the 

clarifications in this rulemaking. DHS 

agrees and hopes that this rule will 

improve adjudications and the SIJ 

petition and related adjustment of status 

application processes for SIJs by 

eliminating ambiguities and updating 

the regulation to reflect statutory 

changes and the statutory purpose of 

providing humanitarian protection to 

eligible child survivors of parental 

abuse, abandonment, or neglect. 

Comment: Several commenters 

expressed support for the rule but stated 

that they did not want the benefit to go 

to those who might be engaging in fraud 

or abuse or those who do not meet 

certain criteria. One commenter stated 

they hoped that USCIS would strictly 

scrutinize the background of applicants 

to ensure the benefit goes to those ‘‘who 

really need it.’’ Another commenter 

stated that they agreed with the 

proposed rule, but only if ‘‘the parents 

have abandoned the children’’ or there 

were ‘‘some sort of child abuse.’’ 

Response: DHS appreciates 

commenters’ support of the rule. USCIS 

endeavors to screen all benefits for fraud 

to ensure that only those eligible receive 

them. The statute governing SIJ 

eligibility at INA section 101(a)(27)(J), 8 

U.S.C. 1101(a)(27)(J), states that a 

petitioner may be eligible if 

reunification with their parent(s) is not 

viable due to abuse, neglect, 

abandonment, or a similar basis under 

State law. DHS cannot make changes to 

the rule that conflict with the statutory 

requirements of SIJ eligibility. 

Comment: Two commenters stated 

that they believe that the SIJ program is 

a beneficial program and advocated 

further ‘‘revising the law to be looser for 

children’’ and to make the immigration 

system as a whole looser for those 

without criminal records. 

Response: DHS appreciates 

commenters’ support and has 

implemented the SIJ program as 

authorized by Congress. DHS is 

therefore unable to make any changes in 

response to these comments to the 

extent such changes would exceed its 

rulemaking authority. This rule 

modifies the regulations surrounding 

SIJs specifically, not those impacted by 

the immigration system without 

criminal records, and DHS believes the 

changes provide greater clarity and 

further align the SIJ program with the 

statutory purpose. 

2. General Opposition to the Proposed 

Rule 

Comment: Several commenters 

opposed the proposed rule on the basis 

that they did not agree with the 

statutory SIJ classification because they 

viewed it as giving ‘‘amnesty’’ to 

foreign-born children or using taxpayer 

dollars to provide benefits for foreign 

born children, rather than U.S. citizen 

children in need. 

Response: DHS has implemented the 

SIJ program as authorized by Congress. 

DHS also notes that the costs of USCIS 

are generally funded by fees paid by 

those who file benefit requests and not 

by taxpayer dollars appropriated by 

Congress. See INA section 286(m), 8 

U.S.C. 1356(m). DHS made no changes 

in response to these comments. 

Comment: One commenter said that 

the proposed regulations fail to meet 

their objective of clarifying procedural 

and substantive requirements for the SIJ 

petition by adding extraneous 

requirements that fall outside Congress’ 

intention to provide protection to a 

vulnerable population. 

Response: DHS disagrees with the 

commenter and does not believe that 

any extraneous requirements were 

added beyond those imposed by 

Congress. DHS’s intent with this rule is 

to amend the regulations to reflect 

statutory changes that have taken place 

since the previous regulations were 

published and to further align the 

program with the statutory purpose. 

With regard to the commenter’s specific 

concerns, DHS has addressed each 

concern in subsequent sections of the 

preamble. 

Comment: A commenter wrote that 

the proposed rule would impermissibly 

restrict the due process rights of affected 

migrants who are minors in ways that 

conflict with United States obligations 

under international law and violate 

customary international law. 

Response: DHS disagrees with 

commenters that the rule violates 

international law. The commenter does 

not specify any provision in the 

proposed rule that would negatively 

affect an immigrant minor’s due process 

rights. DHS knows of no changes in the 

rule that deny, restrict, or limit the 

rights of a minor to due process nor of 

any international laws or principles that 

the rule violates. Therefore, DHS is 

making no changes in the final rule as 

a result of this comment. 

Comment: One commenter, 

referencing the USCIS press release 

announcing the reopening of the 

comment period, stated that conclusory 

statements that impugn the motives of 

SIJ petitioners wholesale are improper, 

impart at minimum an appearance of 

bias to adjudications, and thereby 

increase the risk of unfounded denials 

of relief and attendant risk that children 

will be returned to harm. The 

commenter urges DHS to include 

language in the rule clarifying that 

adjudicators must consider any 

application for SIJ on its own merits, to 

underscore DHS’s commitment to fair 

adjudications for all children seeking 

humanitarian protection. 

Response: DHS respectfully disagrees 

that the rule’s announcement contained 

conclusory statements that impart a bias 

to adjudicators. Adjudicators evaluate 

each petition on its own merits, and 

DHS does not imply any predetermined 

outcomes as a result of this rule. DHS 

remains committed to the fair and just 

adjudication of all immigration benefit 

requests. At the same time, DHS will 

continue vetting all immigration benefit 

requests to ensure they are granted only 

to those who are eligible. This requires 

DHS to ensure that petitioners do not 

obtain benefits for which they are not 

eligible under the law. 

Comment: Several commenters said 

that it is inappropriate that SIJ visa 

numbers are assigned to the 

employment-based fourth preference 

(EB–4) visa category and wrote that visa 

numbers in the EB–4 category should go 

only to employment-based immigrants. 

Some commenters wrote that those with 

SIJ classification were taking visa 

numbers away from skilled workers and 

stated that SIJ visa numbers should be 

placed in a separate category. Other 

commenters said that for SIJ petitioners 

to qualify for a visa number under the 

EB–4 category, they should be subject to 

requirements for other employmentbased immigrants, such as being in 

status at the time of applying to adjust 

and having a bona fide relationship to 

the United States. 

Response: DHS is unable to address 

commenters’ concerns because SIJ 

classification is one of a number of 

disparate immigrant classifications that 

collectively are under the EB–4 category 

pursuant to INA section 203(b)(4), 8 

U.S.C. 1153(b)(4). As the designation of 

SIJ visa numbers under the EB–4 

category is statutory, it cannot be altered 

via this rulemaking. 

3. Decision 

(a) Decision Section and Notification of 

Appeal Rights 

In response to public comments, DHS 

added to the final rule a section 

regarding notification of decisions and 

appeal rights on petitions at new 8 CFR 

204.11(h). Such a section was in the 

previous rule at 8 CFR 204.11(e) (58 FR 


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42850), but it had been omitted from the 

NPRM because USCIS regulations at 8 

CFR part 103 provide for such 

notifications and appeals. However, 

DHS has included it in the final rule to 

ensure full clarity for SIJ petitioners. 

4. Section Heading 

Comment: Nine commenters thought 

that the section heading of proposed 8 

CFR 204.11, ‘‘Special immigrant 

classification for certain aliens declared 

dependent on a juvenile court (Special 

Immigrant Juvenile),’’ should be 

changed to reflect all of the categories of 

individuals who may be eligible. 

Response: DHS agrees that the section 

heading should be amended because 

juvenile court dependents are only one 

of several categories of individuals who 

may be eligible under INA section 

101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). 

DHS thinks it best to simply change the 

section heading to ‘‘Special immigrant 

juvenile classification.’’ See new 8 CFR 

204.11. This section heading is much 

more succinct and still ensures that the 

section heading is inclusive of all 

eligible individuals. 

5. Terminology 

Comment: Several commenters wrote 

about the use of the term ‘‘alien’’ in the 

proposed rule. While some supported 

the use of the term and noted that it is 

a legally defined term of art under the 

INA, others contended that use of the 

term encourages negative stereotyping 

of undocumented people. These 

commenters recommended that the term 

‘‘alien’’ be removed from the regulatory 

text and not be used to refer to the 

individual seeking SIJ classification. 

Response: While the term ‘‘alien’’ is a 

legal term of art defined in the INA for 

immigration purposes, DHS recognizes 

that the term has been ascribed with a 

negative, dehumanizing connotation, 

and alternative terms, such as 

‘‘noncitizen,’’ that reflect our 

commitment to treat each person the 

Department encounters with respect and 

recognition of that individual’s 

humanity and dignity are preferred. 

DHS will use the term ‘‘alien’’ when 

necessary in the regulatory text as the 

term of art that is used in the statute, but 

where possible we will use the term 

‘‘petitioner’’ to refer to those who are 

seeking SIJ classification, and the term 

‘‘applicant’’ to refer to those who are 

seeking adjustment of status based upon 

classification as an SIJ. See, e.g., new 8 

CFR 204.11(a) and 245.1(e)(3). 

Comment: One commenter noted that 

DHS used both the terms ‘‘status’’ and 

‘‘classification’’ in referring to SIJ and 

asked DHS to be clear in the use of these 

terms. 

Response: DHS agrees with the 

commenter that the rule should be 

consistent in the use of those terms. SIJ 

is a ‘‘classification’’; an individual does 

not receive an actual ‘‘status’’ until they 

become an LPR based on the underlying 

SIJ classification. For clarity, DHS uses 

‘‘classification’’ throughout this 

rulemaking when referring to the SIJ 

benefit itself. See, e.g., new 8 CFR 

204.11(a). 

Comment: One commenter requested 

that the term ‘‘juvenile’’ be replaced 

with the term ‘‘immigrant’’ when 

referring to the person seeking 

classification as an SIJ because the 

statute never refers to the ‘‘special 

immigrant’’ as a juvenile. Another 

commenter noted that if DHS intends 

that an adult filing on behalf of an 

individual can function as the 

‘‘petitioner,’’ then DHS should replace 

the word ‘‘petitioner’’ with ‘‘alien’’ for 

clarity and consistency. 

Response: DHS declines to make the 

changes requested by the commenters. 

DHS uses the term ‘‘petitioner’’ to refer 

to the noncitizen seeking SIJ 

classification but includes in the 

regulatory text that another person may 

file on the petitioner’s behalf. See new 

8 CFR 204.11(d)(1). DHS does not make 

any changes in this rule to DHS 

regulations governing who can file a 

petition on behalf of a child at 8 CFR 

103.2. DHS will therefore use the more 

appropriate term ‘‘petitioner’’ to refer to 

the person seeking SIJ classification. 

6. Organization 

Comment: Several commenters 

thought that the way DHS organized the 

information in the proposed rule 

relating to SIJ classification and the 

related SIJ-based adjustment of status 

seemed to conflate the two standards. 

Response: DHS agrees with 

commenters that its proposed layout 

may raise confusion. In the final rule, 

DHS separates the requirements for SIJbased adjustment of status into 8 CFR 

245.1(e)(3), and limits 8 CFR 204.11 to 

requirements for SIJ classification. 

7. Effective Date 

Comment: One commenter asked DHS 

to consider grandfathering or creating an 

exception for those individuals who 

could not file under the previous rule, 

especially those who could qualify only 

if both parents abused, neglected, or 

abandoned the individual. 

Response: DHS appreciates this 

concern; however, the change the 

commenter was referring to was 

statutory, and without clear 

congressional instruction to 

retroactively apply provisions of TVPRA 

2008, DHS declines to make changes 

based on this comment. DHS did 

implement the changes in 2008, 

consistent with the statutory language. 

Any cases filed after that date did 

benefit from those statutory changes, 

though USCIS regulations did not reflect 

the change. DHS cannot however apply 

those statutory changes retroactively to 

petitions filed prior to passage of 

TVPRA 2008. DHS notes that a 

petitioner is required to establish 

eligibility at the time of filing and 

remain eligible through adjudication of 

the petition. 8 CFR 103.2(b)(1). Statutes 

are generally prospective only, but 

Congress may apply a statute 

retroactively if it includes clear 

language providing for retroactive 

application in the legislation. For 

example, Congress did so in the VAWA 

2013 changes to U nonimmigrant status 

(victims of crime). Violence Against 

Women Reauthorization Act of 2013, 

Public Law 113–4 (Mar. 7, 2013) 

(VAWA 2013). In creating age-out 

protection providing that certain 

qualifying family members of U 

nonimmigrant petitioners must file a 

request before the age of 21, but may 

exceed that age while the request is 

being processed, Congress added an 

effective date that says the amendment 

‘‘shall take effect as if enacted as part of 

the Victims of Trafficking and Violence 

Protection Act of 2000.’’ VAWA 2013 

section 805(b). Without such clear 

statutory authority in TVPRA 2008, DHS 

will not apply its SIJ provisions 

retroactively. 

8. Regulatory Comments 

Comment: One commenter wrote that 

the rule is arbitrary and capricious in 

violation of the Administrative 

Procedure Act (APA) because DHS did 

not provide reasoned justifications for 

its changes to longstanding policies. 

Response: The commenter does not 

indicate which changes that DHS 

proposed were not sufficiently 

explained. Nevertheless, DHS provided 

a detailed explanation for each of its 

proposed regulatory provisions 

governing the SIJ program. See 76 FR 

54979–54983. DHS also summarized the 

changes again in the comment period 

extension notice to refresh the public 

comments. See 84 FR 55250–55251. In 

addition, the changes are mainly in the 

nature of changes to implement 

statutory revisions, clarifying changes, 

changes to improve the application 

process, or to make technical and 

procedural changes. The changes are not 

major departures from longstanding 

DHS positions, and they do not rely on 

factual findings that contradict those 

that underlay our prior policy. 


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6See Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 

1392 (9th Cir. 1995); Mobil Oil Corp. v. EPA, 35 

F.3d 579, 584–85 (D.C. Cir. 1994). 

Comment: Three commenters said 

that the proposed rule did not conduct 

the regulatory analysis required under 

Federal law and executive orders. One 

commenter stated that the NPRM’s 

assessment that there will be no 

economic impact is inaccurate because 

the rule imposes a higher standard of 

review for the consent analysis, which 

will increase costs for USCIS and slow 

adjudications. Additionally, this 

commenter stated that the prediction in 

the NPRM that the fee impacts on 

petitioners are neutral is inaccurate as 

filings have increased beyond those 

expected at the time the proposed rule 

was issued. 

Response: USCIS provided an 

economic analysis in the NPRM and is 

updating the analysis in this final rule. 

See 76 FR 54984. The commenters 

correctly note that DHS stated that the 

fee impacts of this rule on each SIJ 

petitioner as well as on USCIS are 

neutral because USCIS estimates that 

filings for SIJ classification will 

continue at about the same volume as 

they have in the relatively recent past. 

Id DHS disagrees that this rule’s consent 

analysis will delay adjudications and 

increase costs for USCIS. The proposed 

rule also stated the fees for the forms 

filed by petitioners seeking SIJ 

classification, including Form I–485, 

Application to Register Permanent 

Residence or Adjust Status, and Form I– 

601, Application for Waiver of Ground 

of Inadmissibility, were not affected by 

the rule. This rule does not change the 

fees that will be paid by SIJ petitioners. 

As noted in the economic analysis for 

this final rule, the number of SIJ 

petitioners has increased since the 

proposed rule, and the fees have 

changed as a result of rules other than 

this one. See 81 FR 73292 (Oct. 24, 

2016). Generally, though, SIJ petitioners 

are eligible to request fee waivers for 

USCIS benefit requests. USCIS has 

provided an updated regulatory impact 

analysis of changes being made in this 

rule in Section IV.A, ‘‘Executive Orders 

12866 (Regulatory Planning and 

Review) and 13563 (Improving 

Regulation and Regulatory Review)’’. 

Comment: Several commenters stated 

that the proposed rule was outdated and 

stale because of the time that elapsed 

between the issuance of the NPRM in 

2011 and the reopening of the comment 

period in 2019. Three commenters 

noted that the results of the review of 

the Office of Management and Budget 

(OMB) are therefore outdated and 

unreliable for a current assessment of 

the proposed rule’s costs and benefits. 

These commenters requested that DHS 

withdraw the NPRM pending new 

review and analysis by OMB in light of 

current USCIS procedures and policies. 

Another commenter requested that 

USCIS update its proposal and provide 

a revised proposed rule in a 

supplemental notice of proposed 

rulemaking that would allow comment 

on a complete proposal that reflects the 

current state of the law. 

Response: DHS recognizes that 

approximately 10 years have passed 

since it first proposed changes to the SIJ 

program through rulemaking and 

accordingly stated that it reopened the 

comment period ‘‘to refresh this 

proposed rule and allow interested 

persons to provide up-to-date comments 

in recognition of the time that has 

lapsed since the initial publication of 

the proposed rule.’’ 84 FR 55251. Prior 

to reopening the comment period in 

2019, DHS assessed the changes to the 

program since the rule was proposed 8 

years prior and determined that it was 

still interested in its original proposals, 

and that it would reopen the comment 

period to account for any changes over 

the years, to the extent that there were 

any for which it previously did not 

account. In this final rule, DHS is 

responding to both the comments 

received on the proposed rule in 2011 

and the comments received in response 

to the reopened comment period. DHS 

disagrees that it should issue a 

supplemental notice to reflect the 

current state of the law because the law 

has not changed—the last statutory 

update to the SIJ portfolio occurred in 

2008, prior to publishing the NPRM. 

Further, DHS disagrees that it should 

withdraw the rule pending new OMB 

review. DHS acknowledges that the 

adequacy of the notice provided and 

comments received can depend on if the 

situation around the rulemaking has 

changed so much that there was new or 

different information that the agency 

should have offered or the public could 

have provided for consideration.6 DHS 

does not believe that there have been 

significant changes in the basis for the 

proposed rule. Nevertheless, while the 

information for the public to consider 

was not new or changed, DHS published 

a notice requesting a new round of 

public comment to ensure that the 

public had notice of the proposed rule 

and relevant background information 

and that DHS had current input from 

affected stakeholders close to the time of 

decision. 

The reopening of the comment period 

and the final rule have gone through 

OMB review prior to publication. To the 

extent that data have changed and 

developed in the years since the 

proposed rule was published, DHS has 

updated relevant data accordingly. 

Comment: Two commenters stated 

that the proposed rule does not satisfy 

the criteria and fundamental principles 

of federalism required under Executive 

Order (E.O.) 13132. These commenters 

request that DHS withdraw the 

proposed rule and defer to the States on 

areas of traditional State expertise 

related to the administration of SIJ 

petitions, or, in the alternative, that DHS 

issue a federalism summary impact 

statement if it does move forward with 

the rule. Similarly, several commenters 

wrote that the proposed rule lacks 

statutory authority because State courts, 

not Federal immigration agencies, have 

the requisite expertise in child-welfare 

issues that should not be secondguessed by USCIS SIJ adjudicators and 

that DHS improperly encourages a reexamination of the State court’s order; 

requires the petitioner to prove the 

underlying motivation behind the State 

child-welfare assistance sought; and 

mandates the disclosure of evidence 

treated as confidential by the States. 

Response: DHS disagrees with 

commenters that this rulemaking 

implicates federalism concerns. 

Specifically, INA section 101(a)(27)(J), 8 

U.S.C. 1101(a)(27)(J), sets clear 

parameters for the extent of State versus 

Federal involvement in the SIJ process: 

‘‘who has been declared dependent on 

a juvenile court located in the United 

States . . . and in whose case the 

Secretary of Homeland Security 

consents to the grant of special 

immigrant juvenile status.’’ Neither the 

proposed rule nor this final rule 

modifies the extent of State 

involvement. As for the commenter’s 

assertion that DHS violated E.O. 13132 

(Federalism) because it inadequately 

analyzed the rule’s impacts on States, 

DHS reiterates for this final rule that the 

regulation will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. The United States 

Government’s authority to regulate 

immigration and noncitizen status is 

broad, and stems in part from its 

constitutional power to ‘‘establish a 

uniform rule of Naturalization,’’ Art. I, 

§ 8, cl. 4, and on its sovereign power to 

control and conduct foreign relations. 

Arizona v. United States, 567 U.S. 387 

(2012). Under the Supremacy Clause, 

states are precluded from regulating 

conduct in a field that Congress has 

expressly determined must be regulated 

at the federal level or where Congress 


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has created a framework of regulation so 

pervasive that there is no room for the 

States to supplement it. Id. at 399. Here, 

the role of DHS is to adjudicate SIJ 

petitions to determine eligibility for SIJ 

classification and adjustment of status 

as prescribed by the INA—a field in 

which the States have no role. 

Accordingly, it is entirely appropriate 

for USCIS officers when adjudicating an 

SIJ petition to review the State court 

determinations to determine if a 

primary reason the petitioner sought the 

juvenile court determinations was to 

obtain relief from abuse, neglect, 

abandonment, or a similar basis under 

State law, because this review is 

necessary for USCIS to make the 

consent determination required by the 

INA. On the other hand, under this rule 

DHS has no role in making dependency 

or custodial determinations or granting 

relief from abuse, neglect, or 

abandonment, or a similar basis under 

State law, which is a field properly 

reserved to the States. 

9. Miscellaneous 

Several comments were submitted 

that did not relate to the substance of 

the NPRM, and will, therefore, not be 

individually discussed. These 

comments related to areas such as 

writing style and other issues outside of 

the scope of this rulemaking, including 

comments on the USCIS Policy Manual 

or Administrative Appeals Office (AAO) 

Adopted Decisions, recommendations 

not pertaining to this rule, and general 

statements unrelated to the substance of 

the regulation. DHS has reviewed and 

considered all such comments and 

incorporated them as applicable. 

C. Definitions 

1. ‘‘State’’ 

Comment: Six commenters 

recommended that DHS change the 

proposed definition of ‘‘State’’ to 

encompass all geographic areas under 

the administrative control of the United 

States. Another commenter pointed out 

that to define ‘‘State’’ but not ‘‘United 

States’’ was an oversight. 

Response: DHS agrees with the 

commenters that the proposed 

definition of ‘‘State’’ appears incomplete 

and will adopt the INA definitions for 

‘‘State’’ and ‘‘United States,’’ which are 

established immigration terms of art. 

This final rule amends the definition of 

‘‘State’’ and adds the definition for 

‘‘United States’’ at 8 CFR 204.11(a) by 

making reference to the INA definitions. 

2. ‘‘Juvenile Court’’ 

Comment: Twenty-three commenters 

recommended changes to the definition 

of ‘‘juvenile court.’’ Four commenters 

requested that the definition expressly 

indicate that qualifying juvenile courts 

that can issue orders include 

delinquency courts. One commenter 

wrote that the use of the term ‘‘juvenile 

court’’ did not track statutory language, 

which allows for a custody 

determination by a State juvenile court. 

Eighteen commenters requested that the 

term ‘‘juvenile court’’ be modified to 

align with INA section 101(a)(27)(J)(i), 8 

U.S.C. 1101(a)(27)(J)(i), which 

recognizes juvenile court dependency or 

custody determination. One commenter 

suggested that the final rule be 

consistent with the definition of 

‘‘juvenile court’’ from the AAO Adopted 

Decision, Matter of A–O–C–, which 

states that ‘‘petitioners must establish 

that the court had competent 

jurisdiction to make judicial 

determinations about their dependency 

and/or custody and care as juveniles 

under State law.’’ Matter of A–O–C–, 

Adopted Decision 2019–03, at 4 (AAO 

Oct. 11, 2019). One commenter 

suggested that the term ‘‘juvenile court’’ 

include the custody, care, guardianship, 

delinquency, or best interest of the 

juvenile. Another commenter suggested 

that the definition include care, 

custody, dependency, and/or placement 

of a child. 

Response: DHS agrees with the 

commenters that the definition of 

‘‘juvenile court’’ should include 

dependency to align with INA section 

101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), 

and the guidance provided in Matter of 

A–O–C–. The final rule defines 

‘‘juvenile court’’ as a court located in 

the United States that has jurisdiction 

under State law to make judicial 

determinations about the dependency 

and/or custody and care of juveniles. 

New 8 CFR 204.11(a). The final rule 

defines the term ‘‘judicial 

determination’’ as a conclusion of law 

made by a juvenile court. Id. Further, 

State law, not federal law, governs the 

definition of ‘‘juvenile,’’ ‘‘child,’’ 

‘‘infant,’’ ‘‘minor,’’ ‘‘youth,’’ or any 

other equivalent term for juvenile which 

applies to the dependency or custody 

proceedings before the juvenile court. 

The final rule therefore requires the 

juvenile court to have exercised its 

jurisdiction over petitioners as juveniles 

(or other equivalent term) under the 

applicable State law. New 8 CFR 

204.11(c)(3)(i). 

DHS, however, declines to specify the 

types of courts that have jurisdiction to 

make judicial determinations about the 

dependency and/or custody and care of 

a juvenile. The definition of ‘‘juvenile 

court’’ in the final rule already 

encompasses various types of State 

courts that have the jurisdiction to make 

judicial determinations about the 

dependency and/or custody and care of 

juveniles, and it does not limit 

qualifying courts to those specifically 

named ‘‘juvenile’’ courts. New 8 CFR 

204.11(a). The names and titles of State 

courts that may act in the capacity of a 

juvenile court to make the types of 

determinations required to establish 

eligibility for SIJ classification may vary 

State to State. A court by a particular 

name may have such authority in one 

State, but not in another. DHS also 

declines to include ‘‘care,’’ 

‘‘guardianship,’’ ‘‘delinquency,’’ 

‘‘placement of a child,’’ or ‘‘best interest 

of the juvenile’’ as part of the definition 

of ‘‘juvenile court’’ for the same 

reason—that a variety of types of 

proceedings may result in a qualifying 

order for SIJ classification, and DHS 

does not want to create a list that may 

be interpreted as exhaustive. 

Comment: A commenter stated that 

the requirement in the NPRM for a 

petitioner to submit a juvenile court 

order issued by a court of competent 

jurisdiction located in the United States 

is redundant because the definition of 

the term ‘‘juvenile court’’ already 

addresses the jurisdictional and 

geographical limitations of the juvenile 

court. 

Response: DHS agrees with this 

comment. Because the term ‘‘juvenile 

court’’ is defined in the final rule as a 

court located in the United States that 

has jurisdiction under State law, DHS 

has removed the proposed provision 

stating that the juvenile court order be 

issued by a court of competent 

jurisdiction. See new 8 CFR 204.11(a). 

D. Eligibility Requirements for 

Classification as a Special Immigrant 

Juvenile 

This final rule adopts the eligibility 

requirements proposed in the NPRM 

regarding age, unmarried status, and 

physical presence. New 8 CFR 

204.11(b)(1) through (3). The reasoning 

provided in the preamble remains valid 

with respect to general eligibility and is 

incorporated here by reference. DHS has 

modified and added language to the 

regulatory text on juvenile court order 

requirements and validity based on 

public comments and on policy 

decisions made after publication of the 

proposed rule. The changes to the 

regulatory text are summarized in this 

preamble in Section I. 

Several commenters raised the issue 

of what point in time (time of filing or 

time of adjudication) USCIS assesses 

eligibility for SIJ classification. In 

general, absent any clear statutory 

authority or compelling reason that 


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suggests otherwise, DHS applies the 

general rule that ‘‘[a]n applicant or 

petitioner must establish that he or she 

is eligible for the requested benefit at 

the time of filing the benefit request and 

must continue to be eligible through 

adjudication.’’ 8 CFR 103.2(b)(1). A 

petitioner who does not meet the 

eligibility requirements at the time of 

filing (and as later described in this rule, 

where applicable, the time of 

adjudication) is not eligible for SIJ 

classification. Exceptions to this general 

rule for specific SIJ classification 

eligibility requirements are addressed in 

the following discussion of the 

individual eligibility requirements. 

The following table illustrates at what 

points during the petition and 

adjudication process USCIS will assess 

each eligibility requirement. 

TABLE 2—SIJ ELIGIBILITY REQUIREMENTS AT TIME OF FILING AND TIME OF ADJUDICATION OF FORM I–360 

Eligibility requirement Time of filing Form I–360 Time of adjudication Form I–360 

Under 21 years of age ....................................... Yes ................................................................... No. 

Unmarried ........................................................... Yes ................................................................... Yes. 

Physical presence .............................................. Yes ................................................................... Yes. 

Valid juvenile court order .................................... Yes, unless meets one of the two exceptions Yes, unless meets one of the two exceptions. 

1. Under 21 Years of Age 

As explained in the proposed rule, 

under TVPRA 2008, USCIS may not 

deny SIJ classification based on age if 

the noncitizen was a child on the date 

on which they petitioned for SIJ 

classification (hereafter referred to as 

‘‘age-out protection’’). TVPRA 2008 

section 235(d)(6), 8 U.S.C. 1232(d)(6). 

Under section 101(b)(1) of INA, 8 U.S.C. 

1101(b)(1), a ‘‘child’’ is defined as under 

21 years of age and unmarried. Through 

these provisions, Congress has 

expressed an intent that SIJ 

classification requires that the noncitizen be under the age of 21 only at the 

time of filing. 

Comment: Twelve commenters 

supported DHS’s proposed change to 

prohibit USCIS from denying SIJ 

classification based on age if the 

individual was a child on the date on 

which they petitioned for SIJ 

classification. One commenter thought 

that the proposed rule drew an 

‘‘arbitrary line’’ at the age of 21 and that 

DHS was disqualifying any person over 

the age of 21 from protections from 

deportation. Some commenters 

indicated that DHS should give higher 

priority to petitioners less than 10 years 

old than to those who are 18 to 21 years 

of age without severe disabilities. 

Response: DHS does not make any 

changes based on these comments 

because the age limit is set by statute. 

DHS does not have the authority to 

expand the program beyond the age the 

law permits nor to give preference to 

one age group over another. See TVPRA 

2008 section 235(d)(6), 8 U.S.C. 

1232(d)(6). DHS will require that the 

petitioner be under 21 years of age only 

at the time of filing at new 8 CFR 

204.11(b)(1). 

2. Unmarried 

Comment: One commenter agreed 

with the retention of the requirement 

that a petitioner remain unmarried 

through the adjudication of the SIJ 

petition. The commenter recommended 

that the final regulation further clarify 

that USCIS will consider other similar 

indicia of emancipation when 

determining whether USCIS should 

consent. The commenter said that for 

example, the regulation should clarify 

that the status of a civil union or 

common law marriage will be an 

indication of the legal equivalent of 

emancipation through marriage. 

Response: USCIS will consider a 

noncitizen’s eligibility for SIJ 

classification based on the 

preponderance of the evidence in its 

assessment of whether a primary reason 

the petitioner sought the required 

juvenile court determinations was to 

obtain relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law. See new 8 CFR 

204.11(b)(5). Where USCIS has evidence 

of a State-recognized common law 

marriage, it will adjudicate the SIJ 

petition consistently with the eligibility 

requirements of the final rule, which 

maintains the long-standing position 

that a petitioner for SIJ classification 

must be unmarried at the time of filing 

and adjudication. See new 8 CFR 

204.11(b)(2). However, civil unions are 

not recognized by USCIS as legal 

marriages for immigration purposes. 

Comment: Four commenters 

requested that DHS remove the 

requirement that a petitioner remain 

unmarried at the time of adjudication. 

Commenters noted that TVPRA 2008 

prohibits denial of a petition based on 

age as long as the conditions were met 

at the time the petition was filed. The 

commenters suggest that similar 

protections should be provided in 

regard to unmarried status, because the 

policy behind the TVPRA 2008 

protection was to protect at-risk child 

victims of abuse. Other commenters 

discussed the effect of marriage on a 

petitioner’s status as a dependent child 

in response to the preamble to the 

NPRM, which stated that ‘‘[m]arriage 

alters the dependent relationship with 

the juvenile court and emancipates the 

child.’’ 76 FR 54980. One commenter 

noted that to the extent that marital 

status may affect the dependency status 

of the petitioner, it is unnecessary to 

require unmarried status through 

adjudication since the proposed rule 

requires dependency at the time of 

adjudication. Another commenter said 

that while marriage in most 

jurisdictions changes whether someone 

is ‘‘dependent’’ or not, USCIS should 

acknowledge that some jurisdictions 

may make an exception where it is in a 

child’s best interests. 

Response: As explained in the 

proposed rule, under the previous 

regulations at 8 CFR 204.11(c)(2), a 

juvenile must remain unmarried both at 

the time the SIJ petition is filed and 

through adjudication in order to qualify 

for SIJ classification. No legislative 

changes or intervening facts have 

caused USCIS to alter this provision. 

This interpretation is consistent with 

Congress’ use of the term ‘‘child’’ in the 

‘‘Transition Rule’’ provision at section 

235(d)(6) of TVPRA 2008. INA section 

101(b)(1), 8 U.S.C. 1101(b)(1), defines a 

‘‘child’’ as under 21 years of age and 

unmarried. In section 235(d)(6) of 

TVPRA 2008, Congress linked the ageout protection specifically to age by 

providing that SIJ classification may not 

be denied ‘‘based on age.’’ TVPRA 2008 

does not link age out protection to 

marital status. Thus, Congress required 

that the petitioner be under the age of 

21 only at the time of filing, but did not 

intend a similar protection as to marital 

status. Further, 8 CFR 103.2(b)(1) states 

that ‘‘[a]n applicant or petitioner must 

establish that he or she is eligible for the 

requested benefit at the time of filing the 

benefit request and must continue to be 

eligible through adjudication.’’ 

Therefore, DHS will maintain its longstanding regulatory requirements, 

consistent with the definition of ‘‘child’’ 

in the INA, that a petitioner be 


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unmarried at time of filing the SIJ 

petition and at time of adjudication. 

New 8 CFR 204.11(b)(2). 

3. Physical Presence in the United 

States 

Comment: One commenter 

recommended that DHS interpret the 

requirement for a petitioner’s physical 

presence in the United States as either 

physical or constructive presence. The 

commenter stated that using the word 

‘‘physically’’ to modify the word 

‘‘present’’ impermissibly narrows the 

statute and the rule should instead 

mirror the text of the statute, which 

provides that an SIJ petitioner is one 

who is ‘‘present in the United States.’’ 

Response: DHS disagrees with this 

interpretation. The statutory language at 

INA section 101(a)(27)(J)(i) requires that 

petitioners be subject to determinations 

from a juvenile court located in the 

United States, indicating that Congress 

intended that the petitioner be 

physically present to be eligible for a 

grant of SIJ classification. It has 

therefore been DHS’s longstanding 

interpretation that physical presence in 

the United States is required for USCIS 

to approve the petition for SIJ 

classification, and no facts or 

circumstances have come to our 

attention that would justify changing 

that interpretation. 

4. Juvenile Court Order Determinations 

(a) Dependency or Custody 

Comment: Fourteen commenters 

thought that the proposed rule was not 

inclusive enough of the various types of 

placements by a juvenile court that 

could lead to eligibility for SIJ 

classification. These commenters want 

DHS to clarify that commitment to or 

placement under the custody of an 

individual could include, but is not 

limited to, adoption and guardianship. 

Another commenter requested that DHS 

clarify that guardianship or adoption 

standing alone is sufficient for SIJ 

classification, without being preceded 

by a dependency, commitment, or 

custody order. Several of these 

commenters asked DHS to clarify that a 

court-ordered placement with a nonoffending parent or a foster home could 

qualify. One commenter requested that 

DHS clarify the types of State court 

proceedings that may qualify, including 

divorce, custody, guardianship, 

dependency, adoption, child support, 

protection orders, parentage, paternity, 

termination of parental rights, 

declaratory judgments, domestication of 

a foreign order, or delinquency. Another 

commenter said that they were 

concerned that USCIS is interpreting 

dependency to exclude children who 

are in the care and custody of the U.S. 

Department of Health and Human 

Services, Office of Refugee Resettlement 

(ORR). 

Response: The plain language of INA 

section 101(a)(27)(J)(i) is disjunctive, 

requiring a petitioner to establish that 

they have either ‘‘been declared 

dependent on a juvenile court . . . or 

. . . such a court has legally committed 

[them] to, or placed [them] under the 

custody of, an agency or department of 

a State, or an individual or entity 

appointed by a State or juvenile court’’. 

INA section 101(a)(27)(J)(i), 8 U.S.C. 

1101(a)(27)(J)(i). The final rule clarifies 

that SIJ classification is available to 

petitioners for whom the juvenile court 

provides or recognizes relief from 

parental abuse, neglect, abandonment, 

or a similar basis under State law, 

which may include the court-ordered 

custodial placement, or the courtordered dependency on the court for the 

provision of child welfare services and/ 

or other court-ordered or courtrecognized protective remedial relief. 

New 8 CFR 204.11(d)(5)(ii)(A) and (B). 

DHS will not include a full list of 

examples of qualifying placements in 

this rule to avoid confusion that 

qualifying placements are limited to 

those listed. However, in response to 

commenters’ request that USCIS clarify 

whether adoption or guardianship 

standing alone may qualify, USCIS 

notes that a judicial determination from 

a juvenile court of adoption or 

guardianship would generally be a 

sufficient custodial and/or dependency 

determination for SIJ eligibility. In 

addition, juvenile court-ordered 

placement with a non-offending relative 

or foster home would also generally 

qualify as a judicial determination 

related to the petitioner’s custody and/ 

or dependency for SIJ eligibility. 

In response to a commenter’s concern 

that USCIS is interpreting dependency 

to exclude children who are in the care 

and custody of ORR, USCIS recognizes 

that placement in federal custody with 

ORR also affords protection as an 

unaccompanied child pursuant to 

Federal law and obviates a State 

juvenile court’s need to provide a 

petitioner with additional relief from 

parental maltreatment under State law. 

See generally Homeland Security Act of 

2002, Public Law 107–296, 462(b)(1), 

116 Stat. 2135, 2203 (2002) (providing 

that ORR shall be responsible for 

‘‘coordinating and implementing the 

placement and care of unaccompanied 

alien children in Federal custody by 

reason of their immigration 

status. . . .’’). Such relief qualifies as 

relief in connection with a juvenile 

court’s dependency determination. In 

this final rule, USCIS is clarifying that 

the relief qualifies so long as the record 

shows that the juvenile court was aware 

that the petitioner was residing in ORR 

custody at the time the order was 

issued. See new 8 CFR 

204.11(d)(5)(ii)(B). For example, if the 

order states that the petitioner is in ORR 

custody, or the underlying documents 

submitted to the juvenile court establish 

the juvenile’s placement in ORR 

custody, that would generally be 

sufficient evidence to demonstrate that 

the court was aware that the petitioner 

was residing in ORR custody. USCIS is 

making this clarification to ensure that 

those in ORR custody are not 

inadvertently excluded from SIJ 

classification because of the 

requirement that the juvenile court 

recognize or grant the relief. 

Comment: Several commenters 

requested further clarification on the 

definition of dependency. One 

commenter requested that DHS explain 

whether dependency includes 

temporary custody orders. Another 

commenter stated that the regulations 

should retain the definition of 

dependency contained in the previous 8 

CFR 204.11(c)(3), which states that a 

petitioner should establish that they 

have been ‘‘declared dependent upon a 

juvenile court located in the United 

States in accordance with state law 

governing such declarations of 

dependency.’’ This commenter noted 

that whether a juvenile is dependent on 

the juvenile court is within the purview 

of the juvenile court and not USCIS. 

Response: DHS recognizes that there 

is no uniform definition for 

‘‘dependency,’’ and the final rule 

continues to give deference to State 

courts on their determinations of 

custody or dependency under State law. 

DHS agrees with the commenter that the 

dependency determination is within the 

jurisdiction of the juvenile court. Thus, 

the final rule requires the juvenile court 

to have made a judicial determination 

‘‘related to the petitioner’s custodial 

placement or dependency in accordance 

with State law governing such 

determinations.’’ New 8 CFR 

204.11(c)(1). 

(b) Parental Reunification Determination 

DHS received twenty-two comments 

on various aspects of the parental 

reunification determination. DHS 

reaffirms that the juvenile court must 

make this determination based on 

applicable State laws. Nothing in this 

rule should be construed as changing 

the standards that State courts use for 

making family reunification 

determinations, such as evidentiary 


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7See also USCIS, ‘‘Policy Alert: Special 

Immigrant Juvenile Classification,’’ Nov. 19, 2019, 

available at https://www.uscis.gov/sites/default/ 

files/policymanual/updates/20191119-SIJ.pdf. 

8USCIS Policy Manual, Volume 6, Immigrants, 

Part J, Special Immigrant Juveniles, Chapter 2, 

Eligibility Requirements [6 USCIS–PM J.2], 

available at https://www.uscis.gov/policy-manual/ 

volume-6-part-j-chapter-2. 

standards, notice to parents, family 

integrity, parental rights, and due 

process. DHS further notes that 

definitions of concepts such as abuse, 

neglect, or abandonment may vary from 

State to State. For example, it is a matter 

of State law to determine if a parent’s 

actions or omissions are so severe that 

even with services or intervention, the 

child cannot be reunified with that 

parent. 

Comment: Several commenters 

requested that the final rule formally 

abandon USCIS’ requirement that in 

order to make a qualifying parental 

reunification determination, the 

juvenile court must have jurisdiction to 

place the juvenile in the custody of the 

unfit parent(s). Another commenter 

requested that DHS explain what 

constitutes a qualifying reunification 

determination when a juvenile court 

does not make an explicit finding and 

grants the offending parent noncustodial 

rights. Seven commenters requested 

clarification that termination of parental 

rights is not a prerequisite for SIJ 

classification. One commenter requested 

that DHS remove from the proposed rule 

any discussion of the requirement that 

a juvenile court order contain a 

determination that the petitioner is 

eligible for long-term foster care due to 

abuse, neglect, or abandonment. 

Response: Consistent with 

longstanding practice and policy, DHS 

agrees that termination of parental rights 

is not required for SIJ eligibility and has 

incorporated this clarification in the 

final rule. New 8 CFR 204.11(c)(1)(ii). 

The idea that children should not grow 

up in the foster care system has led to 

changes in Federal law, such as the 

Adoption and Safe Families Act. 

Adoption and Safe Families Act of 1997, 

Public Law 105–89 (Nov. 19, 1997). The 

SIJ program has evolved along with 

child welfare law to include children for 

whom reunification with one or both 

parents is not viable because of abuse, 

neglect, abandonment, or a similar basis 

under State law. INA section 

101(a)(27)(J)(i) previously required a 

State court determination of eligibility 

for long-term foster care due to abuse, 

neglect, or abandonment; however, the 

statute was modified by TVPRA 2008 to 

reflect this shift away from long-term 

foster care as a permanent option for 

children in need of protection from 

parental maltreatment. Accordingly, 

references to ‘‘foster care’’ were 

removed from the NPRM and have been 

removed from the final rule. 

While there is no longer a 

requirement that petitioners be found 

eligible for long-term foster care, 

nonviability of parental reunification is 

still required. However, DHS no longer 

requires 7 that the juvenile court had 

jurisdiction to place the juvenile in the 

custody of the unfit parent(s) in order to 

make a qualifying determination 

regarding the viability of parental 

reunification; therefore, this final rule 

does not include such a requirement. 

See, e.g., R.F.M. v. Nielsen, 365 F. Supp. 

3d 350 (S.D.N.Y. 2019); J.L., et al. v. 

Cissna, 341 F. Supp. 3d 1048 (N.D. Cal. 

2018); Moreno Galvez v. Cuccinelli, 387 

F. Supp. 3d 1208 (W.D. Wash. 2019); 

W.A.O. v. Cuccinelli, Civil Action No. 

2:19–cv–11696, 2019 U.S. Dist. LEXIS 

136045 (D.N.J. July 3, 2019). DHS 

further acknowledges that even while it 

was in effect, the reunification authority 

requirement should never have applied 

to petitioners who had juvenile-court 

orders entered pursuant to Section 300 

of the California Welfare and 

Institutions Code, because California 

courts generally have continuing 

jurisdiction over juveniles even after 

they turn 18. See, Cal. Welf. & Inst. Code 

§ 303 (which provides that juvenile 

courts ‘‘may retain jurisdiction over any 

person who is found to be a ward or a 

dependent child of the juvenile court 

until the ward or dependent child 

attains 21 years of age’’). These juvenile 

courts have jurisdiction to issue 

findings regarding abuse, neglect, or 

abandonment, and based on these 

findings, ‘‘adjudge that person to be a 

dependent child of the court.’’ See Cal. 

Welf. & Inst. Code § 300. 

Where a juvenile court has intervened 

through, for example, the removal of a 

child from a home because of parental 

maltreatment, such intervention may 

establish that the juvenile court 

determined that parental reunification is 

not viable, even if the court order does 

not explicitly reference that 

determination. However, the petitioner 

must establish that the juvenile court’s 

actions resulted from the court’s 

determination under State law that 

reunification with their parent(s) was 

not viable due to parental maltreatment. 

See new 8 CFR 204.11(c)(1)(ii). 

Comment: Several commenters 

requested that DHS clarify that 

petitioners are eligible for SIJ 

classification when the juvenile court 

determines that parental reunification 

with only one parent is not viable. Two 

commenters further asked DHS to 

include language that the viability of 

reunification applies equally whether 

the parent is a birth parent or an 

adoptive parent. 

Response: The ability of a State court 

to make a ‘‘one parent’’ parental 

reunification determination is a matter 

of State law and depends on the 

individual circumstances of the case. 

Nothing in this rule should be construed 

as changing how juvenile courts 

determine under State law the viability 

of parental reunification. In the event 

that a juvenile court determines that it 

needs to intervene to protect a child 

from one parent’s abuse, neglect, 

abandonment, or a similar basis under 

State law, that court’s determination 

may fulfill the parental reunification 

requirement. Similarly, the ability of a 

court to exercise its authority to place a 

child in the custody of a non-offending 

parent is also a matter of State law. 

Therefore, if reunification with only one 

of the petitioner’s parents is not viable, 

the petitioner may be eligible for SIJ 

classification. DHS, however, declines 

to incorporate the request that the 

reunification determination applies to 

both birth parents and adoptive parents 

because the parental reunification 

determination must be made under 

State law, and it is ultimately a matter 

of State law who constitutes a legal 

parent. In other words, the nonviability 

of parental reunification determination 

must be based upon a parent who the 

State court considers the child’s legal 

parent under State law. 

Comment: DHS also received several 

comments regarding the definitions of 

abuse, neglect, and abandonment as 

they relate to the parental reunification 

determination. One commenter stated 

that the viability of parental 

reunification with one or both of the 

petitioner’s parents due to abuse, 

neglect, abandonment, or a similar basis 

under State law must be determined by 

a juvenile court based on applicable 

State law. Another commenter 

requested that DHS incorporate 

language from the SIJ section of the 

USCIS Policy Manual stating that 

‘‘USCIS generally defers to the court on 

matters of [S]tate law and does not go 

behind the juvenile court order to 

reweigh evidence and make 

independent determinations about . . . 

abuse, neglect, abandonment, or a 

similar basis under [S]tate law.’’ 8

Other commenters recommended that 

DHS define or categorize the terms 

‘‘abuse,’’ ‘‘neglect,’’ and 

‘‘abandonment.’’ One commenter 

recommended that DHS define the 

terms ‘‘abuse,’’ ‘‘neglect,’’ and 

‘‘abandonment,’’ to allow for a 


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consistent application of the law. A 

second commenter suggested that DHS 

implement a standardized process for 

the categorization of the findings of 

State juvenile courts into Federal 

categories for abuse, neglect, and 

abandonment to ensure uniformity in 

DHS’s determination of whether a 

request for SIJ classification is bona fide. 

This commenter suggested adopting a 

version of the modified categorical 

approach used to determine whether a 

criminal conviction has immigration 

consequences. 

Response: Whether a State court order 

submitted to DHS establishes a 

petitioner’s eligibility for SIJ 

classification is a question of Federal 

law and lies within the sole jurisdiction 

of DHS. See Arizona v. United States, 

567 U.S. 387, 394 (2012) (‘‘The 

Government of the United States has 

broad, undoubted power over the 

subject of immigration and the status of 

aliens.’’); see also Budhathoki v. 

Nielsen, 898 F.3d 504, 512 (5th Cir. 

2018) (explaining that ‘‘[w]hatever 

responsibilities are exclusively for the 

[S]tate court, USCIS must evaluate if the 

actions of the [S]tate court make the 

applicant eligible for SIJ 

[classification]’’). However, the plain 

language of the statute, ‘‘whose 

reunification with 1 or both of the 

immigrant’s parents is not viable due to 

abuse, neglect, abandonment, or a 

similar basis found under State law,’’ 

demonstrates that Congress intended the 

determination that reunification with 

one or both of the petitioner’s parents is 

not viable due to parental maltreatment 

to be made by a juvenile court under 

State law. INA section 101(a)(27)(J)(i), 8 

U.S.C. 1101(a)(27)(J)(i) (emphasis 

added). The relevant SIJ statutory 

language does not define abuse, neglect, 

or abandonment. Because the 

determination of parental maltreatment 

is a matter of State law, and the 

definitions of abuse, neglect, and 

abandonment vary from State to State, 

creating a standardized process or 

modified categorical approach would 

undermine Congress’s instruction 

concerning the State’s role in these 

determinations. For these reasons, DHS 

generally defers to juvenile courts on 

matters of State law, though it will 

evaluate orders for legal sufficiency 

under the requirements of INA and 

finds no need to codify additional 

corresponding language from the USCIS 

Policy Manual. 

Comment: Several commenters 

focused on the evidentiary requirements 

for establishing abuse, neglect, 

abandonment, or a similar basis. One 

commenter requested that DHS require 

the juvenile court to check the 

petitioner’s proof of abandonment or 

abuse to in order to prevent fraud. 

Another commenter requested that 

USCIS provide guidance on what 

information should be contained in a 

juvenile court order when the court 

finds that a parent is abusive, including 

the identity of the parent and details of 

the abuse. Another commenter stated 

that juveniles who claim to have been 

abandoned should provide evidence 

showing that they have a bona fide 

relationship to the United States, 

otherwise they should reunify with 

relatives living in their home country. 

Response: Proving a bona fide 

relationship to the United States is not 

an eligibility requirement under INA 

section 101(a)(27)(J), 8 U.S.C. 

1101(a)(27)(J). Further, such a proposal 

was not a part of the NPRM and thus to 

codify a United States nexus 

requirement would be outside the scope 

of this rulemaking. 

As noted earlier in this preamble, 

because a determination regarding 

parental maltreatment is a matter of 

State law, USCIS does not have the 

authority to mandate that a juvenile 

court require specific evidence from a 

petitioner prior to issuing its 

determinations. USCIS is responsible for 

detecting and deterring immigration 

benefit fraud and for determining a 

petitioner’s eligibility for the SIJ 

classification. It cannot delegate these 

responsibilities to the States. Moreover, 

because the determinations of 

dependency, custody, and parental 

maltreatment are a matter of State law, 

USCIS cannot require State juvenile 

courts to act as an immigration 

gatekeeper or to undertake fraud 

investigations in connection with 

dependency or custody proceedings. 

USCIS cannot therefore require juvenile 

courts to take specific actions to verify 

that a petitioner has not reunified with 

his or her parent(s) or otherwise require 

juvenile courts to adopt specific 

procedures to verify or investigate 

parental maltreatment. However, USCIS 

will not grant its consent if the 

petitioner fails to demonstrate that a 

primary reason the juvenile court 

determinations were sought was to 

obtain relief from abuse, abandonment, 

neglect, or a similar basis under State 

law. See new 8 CFR 204.11(b)(5). 

(c) Determination of Best Interest 

Comment: DHS received three 

comments in relation to the requirement 

that juvenile court judges make best 

interest determinations under relevant 

State law. Proposed 8 CFR 

204.11(b)(1)(vi), 76 FR 54985. One 

commenter expressed general support 

for the requirement. Another commenter 

stated that the final rule should not 

require that the juvenile court make a 

determination about a placement in the 

petitioner’s or their parent(s)’ country of 

nationality or last habitual residence. 

One commenter expressed opposition to 

the best interest requirement in the 

proposed rule, stating that the language 

of the INA provision notably does not 

include any requirement that the best 

interest determination be made in State, 

as opposed to Federal, judicial or 

administrative proceedings. This 

commenter suggested that the final rule 

should be amended to provide that 

under 8 U.S.C. 1101(a)(27)(J)(ii), 

repatriation determinations are made by 

USCIS, as part of its statutory consent 

function. 

Response: The best interest 

determination is one of the key 

determinations for establishing 

eligibility for SIJ classification and the 

only one that has not changed 

throughout the history of the SIJ 

program. Since the inception of the SIJ 

program, it has consistently been the 

expressed intent of Congress to reserve 

this benefit for children for whom it has 

been determined that it would not be in 

their best interest to return to their or 

their parent(s)’ home countries. The 

prior regulation interpreted the best 

interest determination as requiring a 

petitioner to have ‘‘been the subject of 

judicial proceedings or administrative 

proceedings authorized or recognized by 

the juvenile court in which it has been 

determined that it would not be in the 

alien’s best interest to be returned to the 

country of nationality or last habitual 

residence of the beneficiary or his or her 

parent or parents.’’ Previous 8 CFR 

204.11(c)(6). In TVPRA 2008, Congress 

did not alter the best interest 

determination, indicating that it 

intended to retain the agency’s longstanding requirement that the best 

interest determination must be made in 

either judicial or administrative 

proceedings by a court or agency 

recognized by the juvenile court and 

authorized by law to make such 

decisions. New 8 CFR 204.11(c)(2)(i). 

The best interest determination is 

therefore not a removal determination to 

repatriate a child (a determination 

within the purview of Federal 

immigration law), rather, it is a 

determination made by a State court or 

relevant administrative body, such as a 

State child welfare agency, regarding the 

best interest of the child. The preamble 

to the 1993 SIJ final rule explained that 

‘‘the Service believes that the decision 

regarding the best interest of the 

beneficiary should be made by the 

juvenile court or the social service 


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9 Merriam-Webster.com, ‘‘present perfect,’’ 

https://www.merriam-webster.com/dictionary/ 

present%20perfect (last visited Aug. 18, 2021). 

agency officials recognized by the 

juvenile court, not by the immigration 

judge or other immigration officials.’’ 58 

FR 42848. 

While the standards for making best 

interest determinations may vary from 

State to State, best interest 

determinations generally consist of the 

deliberation that courts and 

administrative bodies undertake under 

State law when deciding what type of 

services, actions, and orders will best 

serve a child, as well as who is best 

suited to take care of a child. Best 

interest determinations generally 

consider a number of factors related to 

the circumstances of the child and the 

parent or caregiver, with the child’s 

safety and well-being the paramount 

concerns. HHS, Administration for 

Children and Families, Child Welfare 

Information Gateway, ‘‘Determining the 

Best Interests of the Child,’’ 2016, 

available at https://www.childwelfare.

gov/topics/systemwide/laws-policies/ 

statutes/best-interest/. The final rule 

clarifies that it does not alter any 

obligations juvenile courts may have 

under State child welfare law when 

making best interest determinations. 

New 8 CFR 204.11(c)(2)(ii). 

DHS agrees that a juvenile court or 

administrative body may not be able to 

make a placement determination in a 

foreign county. However, DHS has long 

held the interpretation that a 

determination that a particular custodial 

placement is the best alternative 

available to the petitioner in the United 

States does not necessarily establish that 

being returned to the petitioner’s (or 

petitioner’s parents’) country of 

nationality or last habitual residence 

would not be in the child’s best interest. 

See 58 FR 42848. The best interest 

determination must be made based on 

the individual circumstances of the 

petitioner, and DHS will not accept 

conclusions that simply mirror statutory 

language in or cite to INA section 

101(a)(27)(J)(ii), 8 U.S.C. 

1101(a)(27)(J)(ii). The final rule requires 

evidence of the factual basis for the best 

interest determination as part of the 

evidentiary requirement for DHS 

consent. See new 8 CFR 204.11(d)(5)(i). 

5. Qualifying Juvenile Court Orders 

DHS received numerous comments 

regarding the proposed requirement that 

the juvenile court order be in effect at 

the time of filing and continue through 

the time of adjudication of the SIJ 

petition, with limited exceptions 

provided for by the proposed rule. The 

majority of commenters opposed the 

requirement that the juvenile court 

order be in effect at the time of filing 

and/or adjudication. Other commenters 

focused on the exceptions to this 

requirement. 

(a) Validity at Time of Filing and 

Adjudication 

Comment: A number of commenters 

asked DHS to revisit its position of 

requiring the juvenile court order to be 

in effect at the time of filing the SIJ 

petition and continue through the time 

of adjudication. Several of the 

commenters noted that the statute uses 

past tense when referring to the 

dependency and custody 

determinations. Two commenters 

expressed support for retaining this 

requirement, with one commenter 

stating that it ensures that the request 

for SIJ classification is bona fide, and 

another commenter stating that the 

juvenile court order is a filter that makes 

sure that the benefit is reserved for 

children in need of special treatment. 

Another commenter suggested that if 

DHS is retaining this requirement, the 

language of the proposed rule should be 

revised to ‘‘such dependency, 

commitment, or custody must be in 

effect at the time of filing the petition 

and continue through the time of 

adjudication of the petition.’’ 

Response: DHS notes that the INA 

requirement ‘‘has been declared 

dependent . . . or has [been] legally 

committed to, or placed under the 

custody of’’ is worded in the present 

perfect tense. See INA section 

101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i). 

U.S. courts have ‘‘frequently looked to 

Congress’ choice of verb tense to 

ascertain a statute’s temporal reach.’’ 

Carr v. United States, 560 U.S. 438, 448 

(2010). The present perfect tense refers 

to a time in the indefinite past or a past 

action that continues to the present.9

See, e.g., Padilla-Romero v. Holder, 611 

F.3d 1011, 1013 (9th Cir. 2010) 

(explaining that ‘‘[a]s a purely 

grammatical matter, the use of the 

present perfect tense ‘has been,’ read in 

isolation from the surrounding text of 

the statute, can connote either an event 

occurring at an indefinite past time (‘she 

has been to Rome’) or continuing to the 

present (‘she has been here for five 

hours’)’’). DHS believes the wording of 

the dependency requirement in the INA 

is meant to show that the juvenile court 

has done something in the past, but the 

focus is on the present time (the 

adjudication of the SIJ petition by 

USCIS). For this reason, the final rule 

requires that the juvenile court order 

‘‘must be in effect on the date the 

petitioner files the petition and continue 

through the time of adjudication of the 

petition.’’ New 8 CFR 204.11(c)(3)(ii). 

Further, longstanding USCIS 

regulations at 8 CFR 103.2(b)(1), in 

general, require an applicant or 

petitioner for any immigration benefit to 

establish eligibility ‘‘at the time of 

filing,’’ and that eligibility ‘‘must 

continue’’ through adjudication. 

Additionally, DHS agrees with 

commenters that this requirement 

ensures that SIJ classification is 

provided to those truly in need of the 

benefit. DHS has therefore modified the 

regulatory text at new 204.11(c)(3)(ii) to 

clarify that the juvenile court order must 

be in effect at the time of filing the 

petition and remain in effect through 

adjudication, except where the juvenile 

court’s jurisdiction terminated solely 

because of petitioner’s age or due to the 

petitioner reaching a child welfare 

permanency goal, such as adoption. 

These exceptions are discussed further 

elsewhere in this section of the 

preamble. 

Comment: DHS received numerous 

comments about how the requirement 

that the juvenile court order be in effect 

at the time of filing and adjudication 

applies to petitioners who relocate to 

another State. One commenter strongly 

objected to the proposed rule to the 

extent that it presumed that SIJ 

eligibility would continue even if the 

petitioner moved out of State. This 

commenter requested that DHS only 

recognize when a petitioner moves to 

another jurisdiction under the custody 

of a custodian appointed by the juvenile 

court, or when a petitioner in the 

custody of an institution is moved by 

the juvenile court to another 

jurisdiction. 

Other commenters indicated that 

requiring a new court order for 

petitioners that relocate to a new State 

or juvenile court jurisdiction would be 

overly burdensome. Several commenters 

stated that the requirement to obtain a 

new State court order is inconsistent 

with other binding Federal statutes, 

such as the Uniform Child Custody 

Jurisdiction and Enforcement Act 

(UCCJEA) and the Interstate Compact on 

the Placement of Children (ICPC). Those 

commenters said that the UCCJEA and 

ICPC specifically prescribe a process by 

which transfer between States is 

obtained and the initial State typically 

retains jurisdiction of the matter and the 

juvenile. Several commenters also 

expressed concerns that this 

requirement may disproportionately 

affect petitioners in the custody of ORR 

of HHS. Another commenter stated that 

it would create additional hurdles for 

those seeking Federal long-term foster 


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10USCIS Policy Manual, Volume 6, Immigrants, 

Part J, Special Immigrant Juveniles, Chapter 2, 

Eligibility Requirements [6 USCIS–PM J.2], 

available at https://www.uscis.gov/policy-manual/ 

volume-6-part-j-chapter-2. 

care through the Unaccompanied 

Refugee Minor (URM) program. 

Response: DHS does not wish to place 

an extra burden on petitioners who may 

be moved between ORR facilities or to 

court-appointed custodians in another 

jurisdiction, or to those seeking longterm foster care through the URM 

program. Since the time of the NPRM, 

USCIS has issued policy guidance that 

clarifies that a juvenile court order does 

not necessarily terminate because of a 

petitioner’s move to another court’s 

jurisdiction and is maintaining this 

policy, regardless of this final rule.10 If 

the original order is terminated due to 

the relocation of the child, but another 

order is issued in a new jurisdiction, 

USCIS will consider the dependency or 

custody to have continued through the 

time of adjudication of the SIJ petition, 

even if there is a lapse between court 

orders. 

As discussed previously, absent any 

clear statutory authority, DHS applies 

the general rule that ‘‘[a]n applicant or 

petitioner must establish that he or she 

is eligible for the requested benefit at 

the time of filing the benefit request and 

must continue to be eligible through 

adjudication.’’ 8 CFR 103.2(b)(1). DHS 

will retain the requirement that the 

juvenile court order be in effect at the 

time of filing the SIJ petition and 

continue through the time of 

adjudication of the SIJ petition, and 

implements this provision at 8 CFR 

204.11(c)(3)(ii). 

(b) Exceptions to the Requirement That 

a Juvenile Court Order Be Valid at the 

Time of Filing and Adjudication 

Comment: Several commenters 

recommended specific exceptions to the 

requirement that the juvenile court 

order be valid at the time of filing and 

adjudication of the SIJ petition. The 

commenters requested that DHS take 

into account the fact that a court may 

terminate its jurisdiction over a child if 

such child finds a permanent 

placement, such as adoption or legal 

permanent guardianship. The 

commenters were concerned that if the 

court terminated its jurisdiction due to 

the child being placed in permanent 

guardianship or adoptive placement that 

the child would lose eligibility for SIJ 

classification. One commenter stated 

that a child who is returned to one 

parent is usually not subject to 

continuing court supervision. Another 

commenter stated that it would be 

contrary to the statute to deny SIJ 

classification to children who have 

achieved a permanency option in 

juvenile court merely because the 

juvenile court process reached its 

conclusion and secured a safe and 

permanent solution for the child. 

Response: DHS agrees that an 

individual adopted, placed in 

guardianship, or another type of 

permanent placement may remain 

eligible for SIJ classification. The 

previous regulation interpreted the 

‘‘eligible . . . for long-term foster care’’ 

requirement generally to require an 

individual to remain in foster care until 

reaching the age of majority, but 

acknowledged that this did not apply if 

‘‘the child is adopted or placed in a 

guardianship situation.’’ Previous 8 CFR 

204.11(a). In the proposed rule, DHS did 

not propose to alter this position. DHS 

will follow this long-standing position 

and expand it to include other types of 

permanent placements, such as custody 

orders. DHS is clarifying this position at 

new 8 CFR 204.11(c)(3)(ii)(A). The final 

rule states that the juvenile court order 

must be in effect on the date the 

petitioner files the petition and continue 

through the time of adjudication, except 

when the juvenile court’s jurisdiction 

terminated solely because the petitioner 

was adopted, placed in a permanent 

guardianship, or another permanency 

goal was reached. Id. 

Comment: In the NPRM, DHS 

proposed an exception to the 

requirement that the juvenile court 

order continue through the time of 

adjudication for petitioners whose 

juvenile court orders terminated solely 

due to age after filing the SIJ petition. 

Proposed 8 CFR 204.11(b)(1)(iv), 76 FR 

54985. Some commenters asked DHS to 

allow individuals to file if they are 

under 21 years of age and had a juvenile 

court order even if the order has lapsed 

prior to filing the SIJ petition. These 

commenters noted that the INA and 

TVPRA 2008 only require the petitioner 

to be under 21 years of age at the time 

of filing. Other commenters supported 

extending eligibility for petitioners who 

may age out of the juvenile court’s 

jurisdiction due to relocation to another 

State. 

Response: After DHS published the 

2011 NPRM, the government reached a 

stipulation agreement in Perez-Olano, et 

al. v. Holder, et al., which contains a 

provision that a petitioner whose 

juvenile court order terminated solely 

due to age prior to filing the SIJ petition 

remains eligible. Perez-Olano, et al. v. 

Holder, et al., Case No. CV 05–3604 

(C.D. Cal. 2015). In accordance with the 

court agreement and in response to 

public comments, which DHS agrees 

reflect a legally permissible 

interpretation, DHS now codifies the 

exception to the requirement that the 

juvenile court order be valid at the time 

of filing and adjudication for petitioners 

who no longer have a valid juvenile 

court order either prior to or subsequent 

to filing the SIJ petition because of the 

petitioner’s age, at new 8 CFR 

204.11(c)(3)(ii)(B). In response to 

comments, this exception also covers 

the situation of a petitioner who may 

age out of the juvenile court’s 

jurisdiction due to relocation to another 

State. 

E. Evidence 

1. Petition Requirements 

A petitioner must submit a complete 

Form I–360, Petition for Amerasian, 

Widow(er), or Special Immigrant, in 

accordance with the form instructions. 

DHS has amended the form consistent 

with the changes made in this final rule. 

The final rule also removes the form 

number from the regulatory text. New 8 

CFR 204.11. Prescribing a specific form 

number to be filed for a certain benefit 

in the Code of Federal Regulations 

(CFR) is generally not necessary, and 

mandating specific form numbers 

reduces USCIS’ ability to modify or 

modernize its business processes to 

address changing needs. 

2. Age 

Comment: Ten commenters expressed 

concern that the list of documents in the 

proposed rule that may demonstrate 

proof of age was restrictive. Commenters 

discussed the challenges that abused, 

neglected, or abandoned children may 

face in obtaining proof of their age and 

birth from their abusive parents. These 

commenters suggested adding alternate 

documentation of proof of age that 

would be acceptable, and expressly 

indicating that secondary evidence may 

be provided as is allowed for other types 

of immigration petitions. 

Response: DHS agrees that some 

vulnerable children may face challenges 

in obtaining documentation of their age. 

DHS regulations on the provision of 

secondary evidence at 8 CFR 

103.2(b)(2)(i) apply to SIJ petitioners, 

and DHS did not propose to alter this in 

the proposed rule. The previous 

regulation interpreted the proof of age 

requirement for SIJ petitioners to 

include evidence in the form of ‘‘a birth 

certificate, passport, official foreign 

identity document issued by a foreign 

government, such as a Cartilla or a 

Cedula, or other document which in the 

discretion of the director establishes the 

beneficiary’s age.’’ Previous 8 CFR 

204.11(d)(1), 58 FR 42850. DHS will 

follow its long-standing position of 


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allowing official government-issued 

identification or secondary evidence, 

and we have added clarifying language 

at new 8 CFR 204.11(d)(2). 

Comment: Two commenters requested 

that USCIS recognize that SIJ petitioners 

may not have government-issued 

identification to present at the 

biometrics appointment. Another 

commenter requested that DHS remove 

all references to biometrics in the 

regulation. 

Response: DHS appreciates the 

intention of these comments; however, 

it has acted to remove from regulations 

all unnecessary procedural instructions 

and responsibilities, such as acceptable 

documents for office visits. In addition, 

the proposed rule only referenced 

biometrics in the preamble and not in 

the regulatory text itself, which is 

consistent with the final rule as well. 

Therefore, DHS did not revise the 

regulation in response to the 

commenters’ requests and biometrics 

submission requirements for SIJ 

petitioners remain the same. 

Comment: One commenter said that 

in addition to documentary evidence of 

the petitioner’s age, USCIS should 

collect DNA samples as part of its 

biodata procedures, or else confirm that 

a sample has already been collected and 

added to the Combined DNA Index 

System (CODIS) database of the Federal 

Bureau of Investigation (FBI). The 

commenter asserts that the juvenile’s 

age, identity, and any prior contacts 

with law enforcement agencies can be 

more accurately and expeditiously 

verified by USCIS using the CODIS 

database. 

Response: DHS appreciates the 

comment, but DNA collection is outside 

of the scope of this rulemaking. DHS did 

not propose to require SIJ petitioners to 

submit DNA in the proposed rule, and 

it is not a subject on which the public 

was requested to comment. Therefore, 

DHS is unable to incorporate the 

suggestions of the commenter. 

3. Similar Basis 

INA section 101(a)(27)(J)(i), 8 U.S.C. 

1101(a)(27)(J)(i), provides that a 

petitioner must establish that their 

reunification with one or both parents is 

not viable due to ‘‘abuse, neglect, 

abandonment, or a similar basis found 

under State law’’ (emphasis added). 

When a juvenile court determines 

parental reunification is not viable due 

to a basis similar to abuse, neglect, or 

abandonment, the petitioner must 

provide evidence of how the basis is 

legally similar to abuse, neglect, or 

abandonment under State law. New 8 

CFR 204.11(d)(4). The language of the 

order may vary based on individual 

State child welfare law due to variations 

in terminology and local State practice 

in making child welfare decisions. 

Comment: A number of commenters 

said that petitioners should not have to 

demonstrate to USCIS that similar basis 

determinations are equivalent concepts. 

These commenters requested that the 

evidentiary standard be modified to 

reflect that the similar basis requirement 

is met where the court has authority to 

take jurisdiction over the child. 

Commenters also stated that USCIS 

should defer to juvenile court 

determinations regarding what 

constitutes a similar basis under State 

law. Many of the commenters expressed 

concerns that the requirement in the 

proposed rule poses an undue burden 

on petitioners. 

Response: The requirement to 

demonstrate that a similar basis 

determination is legally analogous to 

abuse, neglect, or abandonment under 

State law is statutory and thus DHS does 

not have authority to modify it. INA 

section 101(a)(27)(J)(i), 8 U.S.C. 

1101(a)(27)(J)(i) (‘‘and whose 

reunification with 1 or both of the 

immigrant’s parents is not viable due to 

abuse, neglect, abandonment, or a 

similar basis found under State law’’). 

DHS disagrees that an assumption can 

be made that a basis is legally similar to 

abuse, neglect, or abandonment just 

because a juvenile court took 

jurisdiction over the petitioner. The 

final rule definition of ‘‘juvenile court’’ 

encompasses a wide variety of State 

courts, and such courts may take 

jurisdiction over the case of a juvenile 

for a variety of reasons that are not 

related to parental maltreatment. 

In the preamble to the proposed rule, 

DHS explained that ‘‘[i]f a juvenile court 

order includes a finding that 

reunification with one or both parents is 

not viable [due to a similar basis] under 

State law, the petitioner must establish 

that this State law basis is similar to a 

finding of abuse, neglect, or 

abandonment.’’ 76 FR 54981. The 

preamble further stated that ‘‘[t]he 

nature and elements of the State law 

must be similar to the nature and 

elements of abuse, abandonment, or 

neglect.’’ Id. The preamble provided an 

example under Connecticut law of an 

‘‘uncared for’’ child and explained that 

‘‘uncared for’’ may be similar to abuse, 

abandonment, or neglect, because 

children found ‘‘uncared for’’ are 

equally entitled to juvenile court 

intervention and protection. Id. The 

preamble gave examples of additional 

evidence a petitioner could submit to 

establish the basis for a juvenile court’s 

finding that reunification is not viable 

due to a similar basis found under State 

law; those examples focused on the 

factual basis for the juvenile court’s 

parental reunification determination. Id. 

In response to comments requesting 

further clarification and expressing 

concern that petitioners would face an 

undue burden by having to demonstrate 

legal equivalency in order to establish 

that the ground is similar to abuse, 

neglect, or abandonment, DHS has 

further clarified how petitioners can 

meet the similar basis requirement at 

new 8 CFR 204.11(d)(4)(i) and (ii). 

Evidence demonstrating that this 

requirement is met includes options that 

would not place additional burden on 

the petitioner, such as including the 

juvenile court’s determination as to how 

the basis is legally similar to abuse, 

neglect, or abandonment under State 

law. A petitioner may alternatively 

submit other evidence that establishes 

the juvenile court made a judicial 

determination that the legal basis is 

similar to abuse, neglect, or 

abandonment under State law. Such 

evidence may include the petition for 

dependency, complaint for custody, or 

other documents that initiated the 

juvenile court proceedings. USCIS will 

not re-adjudicate whether the juvenile 

court determinations regarding similar 

basis comply with that State’s law, only 

whether they comply with the 

requirements of Federal immigration 

law for SIJ classification. Additionally, 

USCIS will consider outreach to 

juvenile courts, social workers, 

attorneys and other stakeholders to 

provide technical assistance on the level 

of detail in juvenile court orders and 

underlying documents sufficient for SIJ 

adjudications. 

Comment: One commenter stated that 

the final rule should provide that when 

a child has been a victim of domestic 

violence, forced marriage, or child 

endangerment, the child should be 

presumed to have suffered sufficient 

maltreatment equal to or greater than 

abuse, abandonment, or neglect under 

State law to qualify for SIJ classification 

without having to prove that these State 

laws are similar to abuse, abandonment 

or neglect. 

Response: DHS acknowledges the 

vulnerable circumstances of children 

who are victims of domestic violence, 

forced marriage, or child endangerment. 

However, the INA requires that a 

juvenile court determine that 

reunification is not viable with a child’s 

parent(s) due to abuse, neglect, 

abandonment, or a similar basis under 

State law. INA section 101(a)(27)(J)(i), 8 

U.S.C. 1101(a)(27)(J)(i). Therefore, a 

juvenile court’s determination alone 

that a child is a victim of domestic 

violence, forced marriage, or child 


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11 DHS notes that ‘‘express’’ consent to an 

adjudicative process it controls, unlike express 

consent to a dependency order issued by a State 

juvenile court, would result in an adjudicative 

redundancy. 

endangerment would not be sufficient 

for SIJ purposes, unless it were 

accompanied by: a judicial 

determination that reunification with 

the child’s parent(s) is not viable on that 

basis; and evidence indicating that the 

basis constituted a legal basis similar to 

abuse, neglect, or abandonment under 

State law. As mentioned previously in 

this preamble, DHS provides further 

clarity in this final rule regarding how 

petitioners can meet the evidentiary 

requirement of demonstrating that a 

basis is legally similar to abuse, neglect 

or abandonment under State law at new 

8 CFR 204.11(d)(4)(i) and (ii). 

Comment: Four commenters said that 

the proposed regulations will result in 

adjudicators wrongly denying SIJ 

classification to minors in long-term 

foster care by so narrowly construing 

what constitutes a similar basis under 

State law and that greater deference 

should be granted to the variety of bases 

for which reunification with a child’s 

parent(s) is determined not viable. One 

commenter noted that in certain States 

like Utah, there is no basis for an 

abandonment determination; rather a 

child who is abandoned to State custody 

is determined to be a ‘‘dependent’’ 

child. The commenter requests that 

such determinations resulting in the 

child being removed from the parents 

and placed in State child welfare 

services be considered a similar basis 

under State law for SIJ purposes. 

Response: DHS appreciates the 

commenters’ concern and acknowledges 

that there is variation in terminology 

and local or State practice in making 

child welfare decisions. That a child has 

been placed in State child welfare 

services following a determination that 

parental reunification is not viable may 

constitute part of the evidence provided 

of how a judicial determination is 

similar to abuse, neglect, or 

abandonment under State law. As 

discussed, DHS has added regulatory 

language in the final rule that helps 

clarify what evidence must be provided 

to meet the burden of proof of 

demonstrating that the legal basis is 

similar to abuse, neglect, or 

abandonment under State law. See new 

8 CFR 204.11(d)(4). 

4. Evidentiary Requirements for DHS 

Consent 

DHS proposed that USCIS consent 

would be provided where the petitioner 

sought the qualifying juvenile 

determinations primarily for the 

purpose of obtaining relief from abuse, 

neglect, abandonment, or a similar basis 

under State law, and not primarily for 

the purpose of obtaining lawful 

immigration status, and the evidence 

otherwise demonstrates that there is a 

bona fide basis for granting SIJ 

classification. See proposed 8 CFR 

204.11(c)(1)(i), 76 FR 54985. DHS also 

proposed that the petitioner must 

submit specific findings of fact or other 

relevant evidence establishing the 

factual basis for the juvenile court’s 

parental reunification determination as 

evidence that the request is bona fide. 

See proposed 8 CFR 204.11(d)(3)(ii), 76 

FR 54985 (discussed in the preamble at 

76 FR 54981). 

Many commenters discussed the DHS 

consent function. Some commenters 

focused on the way DHS interprets the 

statutory consent function, while others 

focused on how DHS applies the 

consent function. The majority of 

comments opposed either DHS’s 

interpretation or the operation of its 

consent function in some way. One 

commenter expressed concerns with 

how USCIS will determine if a 

petitioner is primarily seeking lawful 

immigration status, rather than child 

protection. This commenter referenced 

cases of children who may have suffered 

some abuse, neglect, or abandonment in 

the past, but where the abuse, neglect, 

or abandonment does not seem to be the 

reason they are before the court. 

DHS will retain its long-standing 

position on the interpretation of the 

DHS consent function as requiring the 

factual basis for the court’s judicial 

determinations in the final rule. DHS 

has amended the regulations governing 

the consent function in response to 

public comments as described in the 

following paragraphs. 

(a) Background and Legal Interpretation 

of DHS Consent 

Comment: Many commenters opposed 

DHS’s interpretation or application of 

the statutory consent function. These 

commenters said it was impermissible 

for USCIS to ‘‘look behind’’ the juvenile 

court order to determine whether the 

petitioner established that the order was 

sought primarily to obtain relief from 

abuse, neglect, abandonment, or a 

similar basis under State law. Some 

commenters suggested that DHS 

institute a presumption of consent 

where the petitioner meets all of the 

eligibility requirements and has a 

juvenile court order instead of basing its 

consent determination on whether the 

primary purpose for seeking the juvenile 

court order was for relief from parental 

maltreatment. Another commenter 

further noted that in finalizing the 

proposed rule, USCIS also must be 

guided by a Federal district court’s 

conclusion in Zabaleta v. Nielsen, 367 

F. Supp. 3d 208 (S.D.N.Y. 2019), that 

the 2008 TVPRA contracted, rather than 

expanded, DHS’s consent function. 

Response: As discussed in the 

proposed rule, DHS’s position comes 

from legislative history on the creation 

of the consent function. See 76 FR 

54981. Congress amended the SIJ 

classification requirements in 1997 to 

require the express consent of the 

Attorney General to the dependency 

order as a precondition to the grant of 

SIJ classification. See CJS 1998 

Appropriations Act, Public Law 105– 

119, 111 Stat. 2440 (Nov. 26, 1997). 

According to the House Report 

accompanying the 1997 amendments, 

the purpose of the amendments was to 

‘‘limit the beneficiaries of this provision 

to those juveniles for whom it was 

created, namely abandoned, neglected, 

or abused children.’’ H.R. Rep. No. 105– 

405, at 130 (1997). DHS may consent if 

it determines ‘‘neither the dependency 

order nor the administrative or judicial 

determination of the alien’s best interest 

was sought primarily for the purpose of 

obtaining the status of an alien lawfully 

admitted for permanent residence, 

rather than for the purpose of obtaining 

relief from abuse or neglect.’’ Id. 

TVPRA 2008 modified the consent 

function, shifting from express consent 

to the dependency order to consent to 

the grant of SIJ classification. See 

TVPRA 2008 section 235(d)(1)(B)(i). 

Prior to TVPRA 2008, DHS had to make 

two decisions while adjudicating an SIJ 

petition: whether to expressly consent 

to the dependency order and whether to 

approve the SIJ petition. Now USCIS 

need only consent to the grant of SIJ 

classification. The district court in 

Zabaleta v. Nielsen stated that with the 

enactment of TVPRA 2008, ‘‘Congress 

diluted the agency’s consent authority’’ 

when it modified the consent function. 

367 F.Supp.3d at 212. The district court 

reasoned that ‘‘Congress decreased the 

agency’s authority under the consent 

provision’’ when it struck the 

requirement that USCIS expressly 

consent to the dependency order. 367 

F.Supp.3d at 216. DHS disagrees with 

this interpretation of the modification of 

the consent function in TVPRA 2008. 

While TVPRA 2008 shifted DHS’s 

consent function to the grant of the SIJ 

classification and removed the 

requirement that DHS ‘‘expressly’’ 

consent to the dependency order,11

Congress did not remove the consent 

function. DHS cannot treat the consent 

function as absent because Congress did 

not remove it, and neither can DHS 


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render it meaningless by applying a 

presumption that every petition that 

includes a juvenile court order merits 

consent. 

The determinations made by the 

juvenile court are related to the 

dependency or custody, parental 

reunification, and best interests of the 

child under relevant State law. USCIS 

does not go behind the juvenile court 

order to reweigh evidence and generally 

defers to the juvenile court on matters 

of State law. Granting consent based on 

a petitioner’s eligibility for SIJ 

classification under immigration law is 

the role of USCIS. It is not the role of 

the State court to act as an immigration 

gatekeeper. It is clear that SIJ 

classification was created, and remains 

a vital way, to provide immigration 

relief to children who are victims of 

parental maltreatment. DHS therefore 

believes its interpretation of the consent 

function is a reasoned approach based 

on the statutory history of SIJ 

classification and of the consent 

function. 

In response to commenters’ concerns 

regarding how USCIS would weigh the 

petitioner’s motivations, DHS 

recognizes that a juvenile court order 

may have multiple purposes and that 

there may be an immigration motive in 

seeking the determinations concurrent 

with, and in some instances, equal in 

weight to, a desire to obtain relief from 

parental maltreatment. For example, a 

child who has been placed in long-term 

foster care may not become aware of the 

need to regularize their status until well 

after the original determinations 

regarding non-reunification with their 

parent(s) were made by the juvenile 

court. At that time, they may separately 

seek the requisite determinations from 

the juvenile court related specifically to 

SIJ eligibility. Although a primary 

reason for seeking the juvenile court 

determinations at that point would be 

for the purpose of obtaining 

immigration status, it does not negate 

their underlying motivations for seeking 

the original relief from parental 

maltreatment from the court. 

In recognition of the fact that SIJ 

petitioners may have dual or mixed 

motivations, DHS has modified the 

consent function by removing the 

requirement that the petitioner 

demonstrate that they did not seek the 

juvenile court’s determinations 

‘‘primarily for the purpose of obtaining 

lawful immigration status’’ and instead 

requiring the petitioner to establish that 

‘‘a primary reason the required juvenile 

court determinations were sought was to 

obtain relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law.’’ See new 8 CFR 

204.11(b)(5) (emphasis added). 

Establishing that a primary reason the 

petitioner sought the juvenile court 

determinations was to obtain relief from 

parental abuse, neglect, abandonment, 

or a similar basis under State law is 

dependent upon the facts and 

circumstances of each case. USCIS may 

consider any materially relevant 

evidence, and DHS has clarified 

language on the operation of its consent 

function. See new 8 CFR 204.11(b)(5) 

and (d)(5). 

(b) Roles of the Juvenile Court and DHS 

in Determining Eligibility 

Comment: Many commenters 

expressed concern that as written, the 

proposed rule instructs DHS to readjudicate the determinations made by 

juvenile courts as part of the consent 

analysis. One commenter stated that this 

gives in effect ‘‘appellate review’’ of the 

State court adjudication to USCIS; 

another said that this provides for the 

impermissible review and adjudication 

of State court findings. 

Response: The role of DHS is 

fundamentally different from that of the 

juvenile court. The juvenile court makes 

child welfare-related determinations 

under State law. USCIS determines if a 

child meets the statutory requirements 

for SIJ classification under Federal 

immigration law. A juvenile court 

determines if it has the jurisdiction and 

evidence to issue an order under State 

law for the requested juvenile court 

action (e.g., appoint a legal guardian). 

While USCIS defers to the expertise of 

the juvenile court in making child 

welfare decisions and does not reweigh 

the evidence to determine if a child’s 

maltreatment constituted abuse, neglect, 

abandonment, or a similar basis under 

State law, it must still determine 

whether a primary reason the petitioner 

sought the juvenile court determinations 

was to obtain relief from abuse, neglect, 

abandonment, or similar basis found 

under State law. To make this 

determination, DHS requires the factual 

basis for the court’s determinations and 

evidence that the juvenile court granted 

or recognized relief from parental abuse, 

neglect, abandonment, or similar basis 

under State law. See new 8 CFR 

204.11(d)(5)(i) and (ii). DHS will not readjudicate the juvenile court 

determinations regarding State law, but 

rather will look to the juvenile court’s 

determinations, the factual bases 

supporting those determinations, and 

the relief provided or recognized by the 

State juvenile court in exercising its 

consent function. See new 8 CFR 

204.11(d)(5). 

(c) Conflation of Pursuit of a Juvenile 

Court Order With the Determinations 

Necessary for SIJ 

Comment: Eight commenters thought 

that the DHS interpretation of the 

consent function in the proposed rule 

conflated the pursuit of a juvenile court 

order with the pursuit of a special order 

from a judge, including the 

determinations and factual findings 

necessary for SIJ classification. The 

commenters noted that in some 

jurisdictions, the determinations for 

dependency and custody are made in 

separate hearings from the other 

required determinations for SIJ 

eligibility. They further noted that in 

some jurisdictions, an SIJ juvenile court 

order is a separate, special order issued 

to facilitate obtaining immigration relief, 

while determinations relating to custody 

and placement are done independently. 

One commenter expressed general 

support for requiring that USCIS 

consent to SIJ classification, rather than 

the juvenile court order. 

Response: DHS understands that in 

some jurisdictions, the court will have 

a separate hearing and issue a separate 

order with the necessary determinations 

for SIJ classification. In order to ensure 

a clearer understanding, DHS has 

modified the language of the rule to 

state that the petitioner must establish 

that a primary reason they sought the 

juvenile court’s determinations, rather 

than the order itself, was to obtain relief 

from abuse, neglect, abandonment, or a 

similar basis under State law. New 8 

CFR 204.11(b)(5). 

(d) DHS Consent Process and 

Procedures 

Comment: One commenter said that 

the requirement of consent by DHS 

seems wholly unnecessary if, as is 

stated in the proposed rule, approval of 

the SIJ petition is considered the 

granting of consent on behalf of the 

Secretary of Homeland Security. Other 

commenters said that the consent 

provision of the proposed rule 

essentially instructs USCIS adjudicators 

to presume fraud and State court 

incompetence in fact finding in every 

SIJ case. The commenters further noted 

that the ‘‘primary purpose’’ and ‘‘bona 

fide’’ language in proposed 8 CFR 

204.11(c)(1)(i), 76 FR 54985, aims to 

effectively reinstitute the express 

consent provision from prior to the 

changes made by TVPRA 2008 by 

requiring a review of the evidence in the 

record for proof of the petitioner’s 

primary motive and a ‘‘bona fide’’ basis 

to grant SIJ classification. 

Response: DHS disagrees that the 

consent provision is unnecessary 


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12USCIS, ‘‘Memorandum #3—Field Guidance on 

Special Immigrant Juvenile Status Petitions’’ 

(‘‘Policy Memorandum #3’’), May 27, 2004, 

available at https://www.uscis.gov/sites/default/ 

files/USCIS/Laws/Memoranda/Static_Files_

Memoranda/Archives%201998-2008/2004/sij_

memo_052704.pdf. 

13USCIS Policy Manual, Volume 6, Immigrants, 

Part J, Special Immigrant Juveniles, Chapter 3, 

Documentation and Evidence [6 USCIS–PM J.3], 

available at https://www.uscis.gov/policy-manual/ 

volume-6-part-j-chapter-3. 

because the proposed rule indicated that 

approval of the SIJ petition is 

considered the granting of consent on 

behalf of the Secretary of Homeland 

Security. The NPRM specifically stated 

that the ‘‘the approval of a Form I–360 

is evidence of the Secretary’s consent, 

rather than consent being a precondition 

of the juvenile court order’’ in order to 

clarify the TVPRA change. 76 FR 54981 

(emphasis added). DHS did not conflate 

consent with approval. 

DHS also disagrees that the proposed 

rule instructs USCIS adjudicators to 

presume fraud or State court 

incompetence, or to re-adjudicate the 

juvenile court determinations or factual 

findings. The role of the State court and 

DHS are fundamentally different. While 

juvenile courts make determinations 

pursuant to their State law, USCIS must 

adjudicate petitions for SIJ classification 

under Federal immigration law, and 

may grant consent only where the 

eligibility criteria are met and DHS 

determines that a primary reason the 

petitioner sought the required juvenile 

court determinations was to obtain relief 

from parental abuse, neglect, 

abandonment, or a similar basis under 

State law. See new 8 CFR 204.11(b)(5). 

DHS cannot delegate determinations of 

eligibility for the SIJ classification nor 

its consent function to a State court. 

As previously noted, DHS will 

conduct a case-specific adjudication of 

each petition to ensure that petitioners 

have met their burden of proving that 

USCIS consent is warranted. DHS 

therefore declines to make any change 

in response to these comments as DHS 

consent is itself an eligibility 

requirement pursuant to the statute at 

INA section 101(a)(27)(J)(iii), 8 U.S.C. 

1101(a)(27)(J)(iii). 

Comment: Three commenters wrote 

that DHS should develop a process for 

internal review if USCIS determines that 

the juvenile court order was sought 

primarily to obtain immigration benefits 

and USCIS would deny consent. These 

commenters pointed to a USCIS 

memorandum 12 and stated that it 

requires supervisory review prior to 

denying consent or issuing a denial of 

the SIJ petition. As an alternative to 

supervisory review, the commenters 

suggested review at USCIS 

headquarters. 

Response: DHS appreciates 

commenters’ concerns regarding 

denials. However, DHS will not 

promulgate an internal review process 

in the rule that would bind USCIS to an 

administrative procedure that could 

restrict resource allocation and become 

outdated. Supervisory review 

instructions will be provided in 

guidance documents if necessary. DHS 

will consider these comments when 

drafting such guidance. 

Comment: Two commenters requested 

that USCIS notify the petitioner that a 

decision to deny consent is appealable 

to the AAO. 

Response: USCIS notifies denied 

petitioners of the right to appeal the 

decision to the AAO as required by 8 

CFR 103.3(a)(1)(iii)(A) for all appealable 

decisions. For SIJ petitioners, this 

includes the ability to appeal the denial 

of an SIJ petition based on the 

withholding of DHS consent. DHS is not 

aware of this requirement not being 

followed, but to avoid any confusion 

and in response to comments, the final 

rule at new 8 CFR 204.11(h) requires 

notifying petitioners of their right to 

appeal pursuant to 8 CFR 103.3. 

Comment: One commenter said that if 

consent to SIJ classification is warranted 

when ‘‘the state court order was sought 

primarily for the purpose of obtaining 

relief from abuse, neglect, abandonment 

or some similar basis under state law,’’ 

then USCIS should clearly list all 

required initial evidence. The 

commenter further stated that it would 

be helpful to have a list of a few 

examples to clarify what ‘‘additional 

evidence’’ may be required as well. 

Response: There are variations in 

State laws, as well as varying 

requirements regarding privacy and 

confidentiality, so there are no specific 

documents that may or may not fulfill 

these evidentiary requirements. 

However, at new 8 CFR 

204.11(d)(5)(i)(A) and (B), DHS 

provided examples of what may 

constitute relief from parental 

maltreatment, including ‘‘the courtordered custodial placement’’ or ‘‘the 

court-ordered dependency on the court 

for the provision of child welfare 

services and/or other court-ordered or 

recognized protective or remedial relief 

. . .’’ to provide further clarification on 

what evidence may fulfil this 

requirement. Examples of documents 

that may be provided as evidence in 

support of the factual basis for the 

juvenile court order include: Any 

supporting documents submitted to the 

juvenile court; the petition for 

dependency or complaint for custody or 

other documents which initiated the 

juvenile court proceedings; court 

transcripts; affidavits summarizing the 

evidence presented to the court and 

records from the judicial proceedings; 

and affidavits or records that are 

consistent with the determinations 

made by the court.13

(e) Burden on the Petitioner 

Comment: Many commenters said 

that the proposed regulations regarding 

consent imposed too great a burden on 

petitioners. These commenters asked 

DHS not to require the petitioner to 

submit documentation and make 

arguments in excess of what the statute 

requires, and many said that DHS 

should not require findings of fact or 

additional evidence beyond the 

determinations in the juvenile court 

order. Several commenters stated that 

the DHS interpretation of the consent 

function and requirement for evidence 

of the factual basis is burdensome 

because it requires the petitioner to 

prove to USCIS what the juvenile court 

has already determined. Another 

commenter said that the SIJ statute only 

requires that SIJ orders contain factual 

findings, and therefore, USCIS does not 

need to evaluate the petitioner’s intent 

for initiating dependency court 

proceedings nor weigh evidence to 

determine whether it believes the court 

made proper findings. One commenter 

wrote that they strongly agree with 

USCIS that ‘‘the petitioner bears the 

burden’’ of proving that the State court 

order was not sought primarily for any 

other reason than obtaining relief from 

abuse, neglect, abandonment, or some 

similar basis under State law, with 

particular scrutiny of petitions whose 

primary motivation is obtaining an 

immigration benefit. Another 

commenter recommended that the final 

rule incorporate the principles found in 

the NPRM and the USCIS Policy Manual 

that juvenile court findings of fact 

regarding the basis for a determination 

of abuse, neglect, abandonment, or a 

similar basis ‘‘are usually sufficient to 

provide a basis for the Secretary’s 

consent.’’ 84 FR 54981; See also USCIS 

Policy Manual, Volume 6, Immigrants, 

Part J, Special Immigrant Juveniles, 

Chapter 3, Documentation and 

Evidence, A, Juvenile Court Order(s) 

and Administrative Documents, 3, 

Factual Basis and USCIS Consent [6 

USCIS–PM J.3(A.3)], available at https:// 

www.uscis.gov/policy-manual/volume6-part-j-chapter-3. 

Response: DHS does not agree that the 

regulation requiring a factual basis for 

the juvenile court’s determinations 

poses too great a burden on petitioners. 

The burden is on the petitioner, as it is 


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for all immigration benefit requests, to 

establish that they meet eligibility 

requirements. DHS works to ensure that 

all SIJ petitions are properly adjudicated 

under the requirements of the INA, and 

as noted previously, will conduct case 

specific adjudication of each petition to 

ensure that petitioners have met their 

burden of proving that USCIS consent is 

warranted. In the majority of cases, the 

petitioner can meet the burden of 

showing that a primary purpose for 

seeking the order was to provide the 

petitioner relief from parental abuse, 

neglect, or abandonment, or a similar 

basis to these grounds simply based on 

the juvenile court order itself. Orders 

that include findings of fact in support 

of the juvenile court’s determinations, 

as well as evidence of court-ordered or 

recognized relief from parental 

maltreatment, will usually provide the 

basis for USCIS consent. 

Some juvenile courts only provide a 

template order that mirrors the statutory 

language at INA section 101(a)(27)(J) 

with no information on how the 

determinations relate to the petitioner 

under State law. This may not be 

enough to provide a basis for USCIS to 

determine whether to grant consent 

absent supplemental evidence. These 

cases are highly case specific, and each 

will be adjudicated on its own merits. 

In the proposed rule, DHS gave many 

examples of supplementary information 

that could be included with the petition, 

such as juvenile court findings 

accompanying the custody or 

dependency order, actual records from 

the proceedings, or other evidence that 

summarizes the evidence provided to 

the court. See 76 FR 54981. DHS does 

not agree that providing supplementary 

information, such as the examples on 

these lists, is unduly burdensome. In 

many cases, most of the information was 

submitted to the juvenile court by the 

petitioner, his or her parent(s), advocate, 

or attorney and is under the control of 

the petitioner, his or her parent(s), or 

the attorney or advocate for the child. 

DHS also disagrees with commenters 

who said that DHS is instituting 

requirements in excess of the statutory 

requirements, and that the statute only 

requires factual findings. The statute 

explicitly requires that DHS consent to 

the grant of SIJ classification, and for the 

reasons set forth in the NPRM as well 

as this final rule, DHS believes its 

interpretation of consent is reasonable. 

INA section 101(a)(27)(J)(iii), 8 U.S.C. 

1101(a)(27)(J)(iii). 

As previously noted, DHS recognizes 

that a juvenile court order may have 

multiple purposes and that there may be 

some immigration motive in seeking the 

order concurrent with a need to obtain 

relief from parental maltreatment. 

However, adjudicators must review the 

order and any other evidence provided 

to determine whether or not the petition 

was bona fide and merits USCIS 

consent. While adjudicators may not 

substitute their own judgement for that 

of the State juvenile court on issues of 

State law, USCIS must evaluate 

petitions for legal sufficiency under 

Federal immigration law. 

(f) Privacy Concerns 

Comment: Thirty-one commenters 

had privacy concerns with the process 

for USCIS consent and the requirement 

that petitioners provide to USCIS the 

factual basis for the juvenile court’s 

determinations. Many of these 

commenters thought that requiring the 

petitioner to submit additional 

documents from a court, government 

agency, or other administrative body, 

beyond just the juvenile court order, 

compels the petitioner to present 

information that is protected under 

State privacy laws. Several other 

commenters were concerned with 

language in the preamble to the 

proposed rule that would allow officers 

to obtain records directly from a 

juvenile court. See 76 FR 54982. The 

commenters wrote that DHS should 

remove this from the final rule or at 

least educate officers on applicable 

privacy laws and instruct officers to 

follow proper procedures for lawfully 

obtaining access to the records, which 

may mean formally petitioning a 

juvenile court. 

Response: DHS agrees that all 

applicable privacy laws should be 

followed in the provision of juvenile 

court records. Nothing in DHS guidance 

should be construed as requiring the 

release or obtaining of records in 

violation of privacy laws, and officers 

are advised on relevant privacy laws 

and procedures as they relate to SIJ 

petitions. As discussed previously, often 

these records were submitted to the 

juvenile court by the petitioner, his or 

her parent(s), attorney, or advocate and 

the documents are already under the 

control of the petitioner, his or her 

parent(s), attorney or advocate for the 

child. DHS agrees that petitioners and 

their legal representatives should follow 

State laws regarding the authorization of 

release of confidential records. 

DHS provided a list of documents in 

the proposed rule that may assist the 

petitioner in providing evidence of the 

factual basis. These documents are 

intended to be examples of documents 

that the petitioner can provide. 

However, it is ultimately up to the 

petitioner which particular document(s) 

they choose to provide. DHS will not 

require a specific form of evidence to 

prove the factual basis. Requests for 

additional evidence on SIJ petitions are 

governed by the same regulations that 

govern all other immigration petitions. 

See 8 CFR 103.2 and 103.3. USCIS 

officers generally do not directly request 

records from any party other than the 

petitioner and their legal representative 

in adjudicating SIJ petitions. However, 

this does not bar USCIS from directly 

requesting documents as part of a fraud 

investigation, as permitted by law. 

(g) Consent Standards 

Comment: Twenty-one commenters 

wrote that DHS should not equate 

‘‘consent’’ and ‘‘discretion’’ and said 

that the proposed rule attempted to 

impermissibly give DHS discretion 

where the statute only provides for 

consent. Commenters were concerned 

that this language would allow USCIS to 

consider factors that are not related to 

SIJ eligibility requirements. 

Response: The NPRM proposed that 

DHS would consider both the evidence 

on the record as well as ‘‘permissible 

discretionary factors’’ (proposed 8 CFR 

204.11(c)(1)(i), 76 FR 54985) (‘‘In 

determining whether to provide consent 

. . . USCIS will consider, among other 

permissible discretionary factors, 

whether the alien has established, based 

on the evidence of record . . .’’). The 

NPRM also proposed that the 

‘‘petitioner has the burden of proof to 

show that discretion should be 

exercised in his or her favor.’’ See 

proposed 8 CFR 204.11(c)(1)(ii), 76 FR 

54985. DHS recognizes that the wording 

of the regulatory text in the NPRM may 

have caused some confusion as to how 

DHS would determine if consent is 

warranted, and we agree that consent is 

not a discretionary function. In 

exercising consent, DHS intends to only 

consider factors that are relevant to 

assessing whether a primary reason the 

petitioner sought the juvenile court’s 

determinations was to obtain relief from 

parental abuse, neglect, abandonment, 

or a similar basis under State law. DHS 

has accordingly refined the language in 

this final rule and has set parameters for 

exercising the consent function by 

codifying its interpretation of consent 

and the evidence required. Under the 

consent function, adjudicators must 

determine that the request for SIJ 

classification is bona fide. See new 8 

CFR 204.11(b)(5). DHS requires the 

petitioner to submit the factual basis for 

the juvenile court’s determinations and 

evidence the court provided relief from 

parental maltreatment to demonstrate 

that the request is bona fide. See new 8 

CFR 204.11(d)(5)(i) and (ii). DHS will 

generally consent to the grant of SIJ 


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14Saravia v. Barr, 3:17–cv–03615 (N.D. Cal. Jan. 

14, 2021). 

15The proposed rule cited to Yeboah v. DOJ, 345 

F.3d 216 (3d Cir. 2003), which held, in part, that 

legacy INS acted within its discretion in 

considering evidence of the petitioner’s relationship 

with his family and physical and mental condition 

in deciding whether to deny consent. Yeboah 

addressed the legacy INS’s specific consent 

function for juveniles in INS custody, which has 

since been amended by the 2008 TVPRA. 

16TVPRA 2008 vested responsibility for issuing 

specific consent for unaccompanied children in 

HHS custody with HHS, rather than DHS. It also 

simplified the consent language used to refer 

simply to ‘‘custody’’ rather than ‘‘actual or 

constructive custody’’ as the requirement was 

previously worded after its creation by the 1998 

Appropriations Act. The Departments of Commerce, 

Justice, and State, the Judiciary, and Related 

Agencies Appropriations Act, 1998 (CJS 1998 

Appropriations Act), Public Law 105–119, 111 Stat. 

2440 (Nov. 26, 1997). 

classification if the petitioner meets 

these evidentiary requirements. 

The final rule also clarifies DHS’s 

provision to consider the evidence of 

record when assessing consent by 

stating that ‘‘USCIS may withhold 

consent if evidence materially conflicts 

with the eligibility requirements [for SIJ 

classification] . . . such that the record 

reflects that the request for SIJ 

classification was not bona fide.’’ New 

8 CFR 204.11(b)(5). 

Pursuant to the settlement agreement 

in Saravia v. Barr, USCIS will not, 

however, withhold consent based in 

whole or in part on the fact that the 

State court did not consider or 

sufficiently consider evidence of the 

petitioner’s gang affiliation when 

deciding whether to issue a predicate 

order or in making its determination 

that it was not in the best interest of the 

child to return to their home country. 

USCIS also will not use its consent 

authority to reweigh the evidence that 

the juvenile court considered when it 

issued the predicate order,14 nor will it 

consider factors without a nexus to the 

petitioner’s motivations for seeking the 

juvenile court determinations. 

(h) Consent and Role of the Child’s 

Parent 

Comment: Several commenters 

disagreed with language in the NPRM 

preamble that DHS may consider 

evidence of a parent or custodian’s role 

in arranging for the petitioner to travel 

to the United States or to petition for SIJ 

classification as reason to suspect that 

the juvenile court order was sought 

primarily to obtain lawful immigration 

status. See 76 FR 54982. One 

commenter stated that punishing 

children for their parents’ actions 

ignores the independent right of the 

child to receive relief, and it 

contravenes the purpose of the statute to 

protect vulnerable children. Several 

commenters said that the parent sending 

the child to the U.S. may have been to 

protect the child from the abuse, 

neglect, or abandonment of the other 

parent. 

Response: It is a matter of State law 

as to if and how a parent’s or 

custodian’s role in arranging travel to 

the United States impacts a juvenile 

court’s ability to issue a court order and 

make the required judicial 

determinations.15 However, a petitioner 

must establish by a preponderance of 

the evidence that a primary reason they 

sought the juvenile court determinations 

was to obtain relief from parental 

maltreatment. See new 8 CFR 

204.11(b)(5). As discussed, the final rule 

clarifies that USCIS may withhold 

consent if evidence materially conflicts 

with the eligibility requirements for SIJ 

classification such that the record 

reflects that the request for SIJ 

classification was not bona fide. Id. This 

may include situations such as one in 

which a juvenile court relies upon a 

petitioner’s statement, and/or other 

evidence in the underlying submission 

to the juvenile court, that the petitioner 

has not had contact with a parent in 

many years to make a determination 

that reunification with that parent is not 

viable due to abandonment, but USCIS 

has evidence that the petitioner was 

residing with that parent at the time the 

juvenile court order was issued. Such an 

inconsistency may show that the 

required juvenile court determinations 

were sought primarily to obtain an 

immigration benefit rather than relief 

from parental maltreatment. However, 

evidence that the petitioner sought the 

juvenile court determinations for both 

an immigration purpose and for relief 

from parental maltreatment would not 

alone result in a material conflict 

demonstrating that the request for SIJ 

classification was not bona fide. This 

reflects DHS’ position that SIJ 

petitioners may have mixed 

motivations. 

5. HHS Consent 

Several commenters focused on the 

requirement of specific consent from 

HHS, including one commenter who 

generally supported DHS including 

specific consent from HHS in the rule. 

Based on TVPRA 2008 and the PerezOlano Settlement Agreement, the 

proposed rule stated that an 

unaccompanied child in the custody of 

HHS is required to obtain specific 

consent from HHS to a juvenile court 

order that determines or alters their 

custody status or placement prior to 

filing a petition with USCIS.16

Comment: Five commenters thought 

that the proposed provision regarding 

juvenile court orders that ‘‘alter’’ the 

individual’s custody status or placement 

went beyond what is required by the 

INA. INA section 101(a)(27)(J)(iii)(I), 8 

U.S.C. 1101(a)(27)(J)(iii)(I), states that 

‘‘no juvenile court has jurisdiction to 

determine the custody status or 

placement of an alien in the custody of 

the Secretary of [HHS] unless the 

Secretary of [HHS] specifically consents 

to such jurisdiction’’ (emphasis added). 

Response: This regulation implements 

the limited circumstances under which 

USCIS requires evidence of HHS 

consent at new 8 CFR 204.11(d)(6). The 

language intentionally restricts the pool 

of children in HHS custody to whom the 

specific consent requirement applies, as 

was intended by both TVPRA 2008 and 

the subsequent Perez-Olano Settlement 

Agreement. Perez-Olano, et al. v. 

Holder, et al., Case No. CV 05–3604 

(C.D. Cal. 2010). Although the PerezOlano Settlement Agreement indicated 

that HHS consent is required only if the 

juvenile court determines or alters the 

child’s custody status or placement, in 

the final rule, DHS has removed 

‘‘determined’’ and included ‘‘altered’’ 

only. New 8 CFR 204.11(d)(6)(ii). The 

final rule more accurately reflects the 

limited circumstances under which 

USCIS requires evidence of HHS 

consent as discussed at paragraphs 7 

and 17 of the Perez-Olano Settlement 

Agreement. The Settlement Agreement 

clarifies that the HHS consent 

requirement is limited to where the 

juvenile court is changing the custodial 

placement of a petitioner in HHS 

custody. See Perez-Olano, et al. v. 

Holder, et al., Case No. CV 05–3604 at 

¶ 7 and 17 (C.D. Cal. 2010). This codifies 

and reflects long-standing policy, 

clarifying that those petitioners in HHS 

custody who receive juvenile court 

orders declaring them dependent on the 

court and restating their placement in 

ORR custody are not required to obtain 

HHS consent; only those petitioners in 

HHS custody who receive orders 

altering their custodial placements are 

required to obtain HHS consent. 

Comment: Three commenters thought 

that the rule failed to clarify that a court 

exercising jurisdiction over a child in 

HHS custody and issuing an SIJ 

predicate order does not determine 

custody status or placement triggering 

the specific consent requirement. 

Another commenter thought this 

language was restrictive, limiting the 

pool of children in HHS custody to 

whom the specific consent requirement 

applies. 

Response: DHS agrees that the court’s 

determination of dependency or custody 


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required for SIJ classification does not 

necessarily trigger the consent 

requirement. A child is required to 

obtain HHS consent only if they are in 

HHS custody and also want to have a 

state court, not HHS, decide to move 

them out of HHS custody or into a 

placement other than the one designated 

by HHS. In other words, HHS specific 

consent is not required if the juvenile 

court order simply restates the HHS 

placement. Ultimately, specific consent 

is a process conducted by HHS, not 

USCIS, which adjudicates petitions for 

SIJ classification. For DHS purposes, 

where HHS specific consent applies, the 

petitioner should present evidence of a 

grant by HHS of specific consent. 

F. Petition Process 

1. Required Evidence 

Comment: One commenter said that 

USCIS should require the petitioner to 

provide evidence of the residence or 

location of their parent(s) or legal 

guardians if present in the United 

States, and that this information should 

be provided to the appropriate USCIS or 

U.S. Immigration and Customs 

Enforcement (ICE) district office, which 

should then collect a DNA sample from 

them. The commenter further asserted 

that the petition should not be deemed 

properly filed until this requirement is 

completed and stated that such a 

requirement would not require direct 

contact between a petitioner and alleged 

abuser. 

Response: The commenter’s request 

for additional required evidence and 

DNA submissions goes beyond the 

scope of the rulemaking and what is 

required by statute to implement the SIJ 

program. Furthermore, DHS is 

concerned that adding such a 

requirement may run afoul of the no 

contact provision prohibiting DHS from 

compelling petitioners to contact 

alleged abusers. See INA section 287(h), 

8 U.S.C. 1357(h); see also new 8 CFR 

204.11(e). For these reasons, DHS 

declines to incorporate this 

recommendation into the final rule. 

2. No Contact 

The proposed rule implemented the 

statutory requirement at INA section 

287(h), 8 U.S.C. 1357(h), that prohibits 

USCIS from requiring that the petitioner 

contact the alleged abuser at any stage 

of the SIJ petition process. Ten 

commenters discussed issues relating to 

this aspect of the rule, seven of whom 

indicated general support for this 

provision. 

Comment: Two commenters suggested 

expansions of the no contact provision. 

These commenters wrote that this 

protection should be extended to 

proceedings for other immigration 

benefits based upon SIJ classification, 

including LPR status and naturalization. 

These commenters further suggested 

that USCIS employees and officers be 

prohibited from contacting the 

petitioner’s alleged abuser(s) during the 

same processes. 

Response: The statutory protection 

applies to those seeking SIJ 

classification and states that such 

petitioners ‘‘shall not be compelled to 

contact the alleged abuser (or family 

member of the alleged abuser) at any 

stage of applying for special immigrant 

juvenile status.’’ INA section 287(h), 8 

U.S.C. 1357(h). DHS has extended this 

provision to individuals seeking LPR 

status based upon SIJ classification, at 

new 8 CFR 245.1(e)(3)(vii), because SIJ 

classification and SIJ-based adjustment 

of status have historically been sought 

concurrently in certain circumstances. 

DHS appreciates the suggestion to 

extend this protection to the 

naturalization phase also; however, DHS 

proposed no changes to the eligibility 

and adjudication requirements for 

naturalization. Thus, that change is 

beyond the scope of this rulemaking. 

With regard to the commenters’ 

suggestion that DHS expand the 

prohibition against requiring contact 

with the abusers to DHS employees and 

officers, such an expansion is not within 

the scope of the law’s prohibition 

intended to protect petitioners from 

having to contact their alleged abusers. 

Comment: One commenter 

recommended that DHS modify the 

proposed regulatory text to mirror the 

statutory language at INA section 

287(h), 8 U.S.C. 1357(h), which also 

includes individuals who battered, 

neglected, or abandoned the child in the 

categories of individuals that petitioners 

will not be compelled to contact. 

Another commenter supported 

expansion of the no contact provision to 

anyone who has abused the child, not 

just the abusive parent(s). 

Response: DHS agrees with these 

commenters and has clarified that these 

prohibitions on compelling contact 

apply to individuals who abused, 

neglected, battered, or abandoned the 

child. See new 8 CFR 204.11(e) and 8 

CFR 245.1(e)(3)(vii). 

Comment: Five commenters suggested 

that the regulations should stress that 

evidence of the petitioner’s ongoing 

contact with their parent(s) should not 

contradict the child’s petition for SIJ 

classification. These commenters 

suggested that while contact cannot be 

required, it also cannot be held against 

the petitioner given the dynamics of 

abuse. 

Response: DHS appreciates these 

thoughtful comments on the dynamics 

of relationships between abused 

children and their alleged abusers. 

However, DHS will not include 

information on the dynamics of children 

and their alleged abusers in regulation. 

USCIS may provide instructions on 

such issues in guidance to SIJ petition 

adjudicators. 

Comment: One commenter requested 

that DHS add a statement that this 

prohibition on compelling contact with 

alleged abusers would not affect what 

juvenile courts do to ensure parental 

notice of court proceedings. 

Response: While DHS agrees that this 

rule does not apply the no contact 

provision to juvenile court proceedings, 

directly advising juvenile courts on how 

to conduct State court proceedings is 

beyond the scope of this rulemaking and 

DHS authority. 

3. Interview 

Comment: There were a number of 

comments regarding the section of the 

proposed rule that provided for 

interviews of SIJ petitioners at USCIS 

discretion. See proposed 8 CFR 

204.11(e), 76 FR 54986. Sixteen of those 

commenters suggested that USCIS 

should presumptively waive in-person 

interviews of SIJ petitioners, and 

twenty-four commenters indicated that 

USCIS officers should not ask the 

petitioner about abuse, neglect, or 

abandonment. Another commenter said 

that DHS should remove the clause ‘‘as 

a matter of discretion’’ as the SIJ 

adjudication is not a discretionary 

determination. These commenters 

expressed concerns that such 

questioning only would redo what the 

juvenile court has already done, that 

USCIS officers lack the required training 

for taking such testimony, and that it 

can retraumatize children. Several of 

these commenters recommended that 

USCIS establish procedures for its staff 

on how to create a nonthreatening 

interview environment and ensure that 

officers have appropriate training on 

interviewing vulnerable children, and 

one commenter suggested that DHS 

incorporate portions of the USCIS 

Policy Manual on SIJ interviews into the 

rule. 

Response: Regulations on the 

processing and adjudication of 

immigration petitions apply to SIJ 

petitions, including the authority to 

interview anyone who files an 

immigration benefit request, at 8 CFR 

103.2(b)(9). DHS is not changing the 

regulations on immigration interviews 

at 8 CFR 103.2(b)(9) via this rule and 

retains the discretion to interview an SIJ 

petitioner and grant or deny the SIJ 


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petition, consistent with the statute and 

this final rule. DHS disagrees that its 

interview process would redo what a 

juvenile court has already done, or that 

USCIS officers may ‘‘lack the required 

training for taking such testimony,’’ as 

DHS assesses whether to grant or deny 

an immigration benefit. DHS provides 

child interviewing guidelines to 

adjudication officers, and notes, as it 

did in the proposed rule, that USCIS 

seeks to establish a non-adversarial 

interview environment. DHS 

appreciates comments aimed at 

improving interviews of SIJ petitioners 

and will consider implementation of 

these comments through guidance and 

training. 

Comment: While commenters 

expressed general support for allowing 

a trusted adult to be present at the 

interview, twenty-nine commenters 

expressed concerns with the provision 

that USCIS may place reasonable limits 

on the number of persons who may be 

present at the interview. These 

commenters suggested that USCIS 

should not retain the discretion to 

interview a child alone and cannot 

separate a petitioner from their attorney 

or accredited representative. Two 

commenters further stated that it is 

inappropriate to limit the child’s 

representation by their attorney to a 

single statement or written comment in 

a USCIS interview and requested that 

proposed 8 CFR 204.11(e)(2), 76 FR 

54986, be stricken. 

Response: The proposed rule sought 

to recognize the unique vulnerability of 

SIJ petitioners by allowing SIJ 

petitioners to bring a trusted adult to the 

interview, in addition to the petitioner’s 

attorney or legal representative. DHS 

did not intend to limit a petitioner’s 

right to have their attorney or accredited 

representative present at the interview. 

The limitation on persons present at the 

interview was aimed at individuals 

other than the child’s attorney or 

accredited representative. DHS has 

added clarifying language at new 8 CFR 

204.11(f) indicating that USCIS will do 

nothing to inhibit the representation of 

a petitioner by an attorney or accredited 

representative. DHS also has not 

included the proposed provision 

regarding the attorney or representative 

statement in new 8 CFR 204.11(f). 

Comment: Eight commenters opposed 

the provision at proposed 8 CFR 

204.11(e)(2), 76 FR 54986, that a trusted 

adult could present a statement at the 

interview. These commenters expressed 

concerns that this would violate due 

process protections for the petitioner 

because an adult who is not an attorney 

or representative is not subject to any 

ethical rules or disciplinary action 

should they engage in misconduct. 

Furthermore, commenters asserted that 

it may be challenging for adjudicators to 

discern whether the child genuinely 

consented to the adult participating in 

their case, raising potential trafficking 

and abuse concerns. 

Response: In response to comments, 

DHS removed the provision that the 

trusted adult can provide a statement at 

the interview. The removal of this 

language is not intended to mean that an 

attorney or accredited representative is 

not permitted to provide a statement; as 

addressed previously, DHS does not 

seek to inhibit the petitioner’s 

representation by their attorney or 

representative. DHS will explore further 

clarifying the role of the trusted adult 

via guidance. 

Comment: Eleven commenters said 

that USCIS should not question a 

petitioner about their criminal record in 

connection with the SIJ petition. One 

commenter requested clarification on 

what information USCIS looks at in 

regard to the criminal background of SIJ 

petitioners and at what phase in the 

process the inquiry occurs. 

Response: The commentary on 

criminal record was part of the NPRM 

preamble, and not the proposed 

regulatory text. DHS agrees that review 

of the petitioner’s criminal record 

should be conducted in connection with 

the adjustment of status application. 

The criminal record will be reviewed at 

the SIJ petition stage only as it relates 

to the eligibility requirements for SIJ 

classification. For example, if USCIS 

learns that a petitioner found dependent 

on the court pursuant to youthful 

offender proceedings was subsequently 

convicted of a crime as an adult, that 

element of the criminal record may be 

relevant to the petitioner’s eligibility for 

the benefit if it results in a termination 

of the juvenile court dependency prior 

to the time of filing and/or adjudication. 

See new 8 CFR 204.11 (b)(4) and 

(c)(3)(ii). DHS applies the regulations at 

8 CFR part 245 on the processing and 

adjudication of immigration 

applications for SIJ-based adjustment of 

status applications, including the 

regulations at 8 CFR part 245.6 on 

immigration interviews. 

4. SIJ Petition Decision Timeframe 

Requirement 

DHS proposed the 180-day timeframe 

for issuing SIJ petition decisions and 

explained when the period would start 

and stop. See 8 U.S.C. 1232(d)(2); 

proposed 8 CFR 204.11(h), 76 FR 54986. 

DHS noted that the 180-day timeframe 

relates only to the petition for SIJ 

classification and not to any 

concurrently filed, or later filed 

application for adjustment of status. 

DHS modeled the starting and pausing 

of the decision timeframe provisions on 

similar provisions at 8 CFR 

103.2(b)(10)(i). A number of 

commenters discussed the timeframe for 

adjudication, with some expressing 

support for incorporating the 180-day 

timeframe from TVPRA 2008 and others 

asking DHS to reconsider whether the 

framing of the start and stop provisions 

in the proposed rule are legally 

permissible. 

Comment: Twenty commenters asked 

DHS to reconsider whether under 8 

U.S.C. 1232(d)(2), temporarily pausing 

or completely restarting the running of 

the 180-day timeframe is legally 

permissible. Five of the commenters 

said that the timeframe should be 

suspended only, not restarted, for 

requests for additional evidence or to 

reschedule an interview. Another five of 

the commenters thought that a request 

to bring information to an interview 

should not pause the running of the 180 

days and said that it should be paused 

only on the date of the interview if the 

individual fails to present the requested 

documents, delaying the adjudication. 

Response: Despite the confusion 

indicated by the comments, DHS did 

not intend to change the regulations at 

8 CFR 103.2(b)(10)(i) regarding how the 

requests for additional or initial 

evidence or to reschedule an interview 

impact the timeframe imposed for 

processing SIJ petitions. DHS will 

follow the regular practices set out for 

all immigration petitions in 8 CFR 

103.2(b)(10)(i) to ensure regulatory 

consistency and consistency in agency 

practice. To avoid confusion, DHS has 

removed language explaining the 180- 

day timeframe, pauses, and when it 

resumes, and refers to the regulations at 

8 CFR 103.2(b)(10)(i). See new 8 CFR 

204.11(g)(1). 

In acknowledgement of the permanent 

injunction issued in Moreno Galvez v. 

Cuccinelli, No. 2:19–cv–321–RSL (W.D. 

Wash. Oct. 5, 2020) (concluding that all 

adjudications of SIJ petitions based on 

Washington State court orders must be 

completed within 180 days), appeal 

docketed, No. C19–0321–RSL (9th Cir. 

Dec. 4, 2020), DHS will not apply the 

timeframe for issuing SIJ decisions at 

new 8 CFR 204.11(g)(1) to SIJ petitions 

with Washington State orders. DHS 

retains its interpretation that the 

timeframe is not absolute, and though 

the court mandated compliance in 

Washington state, it acknowledged that: 

When determining whether an agency 

has acted within ‘‘a reasonable time’’ for 

purposes of 5 U.S.C. 555(b), the timeline 

established by Congress serves as the 

frame of reference . . . Under governing 


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17 DHS has determined that this approach is a 

logical outgrowth of the proposed rule. DHS 

proposed its interpretation of the 180-day 

timeframe (76 FR at 54983), and clarifies in this 

final rule that it did not intend to change the 

regulations at 8 CFR 103.2(b)(10)(i) regarding how 

the requests for additional or initial evidence or to 

reschedule an interview impact the timeframe 

imposed for processing SIJ petitions. Though USCIS 

considered the reasoning in the injunction, the 

Moreno Galvez order has not changed the Agency’s 

ultimate decision to finalize its proposal. 

case law, that [180 day] deadline is not 

absolute, but it provides the frame of 

reference for determining what is 

reasonable. 

Federal courts must ‘‘defer to an 

agency’s construction, even if it differs 

from what the court believes to be the 

best interpretation, if the particular 

statute is within the agency’s 

jurisdiction to administer, the statute is 

ambiguous on the point at issue, and the 

agency’s construction is reasonable.’’ 

Nat’l Cable & Telecommunications 

Ass’n v. Brand X Internet Servs., 545 

U.S. 967, 969 (2005). While the statute 

states that all petitions for special 

immigrant juvenile classification under 

section 101(a)(27)(J) of the Immigration 

and Nationality Act (8 U.S.C. 

1101(a)(27)(J)) shall be adjudicated by 

the Secretary of Homeland Security not 

later than 180 days after the date on 

which the petition is filed, the 

processing of any immigration benefit 

request requires the submission and 

analysis of a substantial amount of 

information, opportunities for the 

petitioner to provide additional 

evidence to establish eligibility, and the 

vetting of SIJ petitions for which USCIS 

does not control the timing. The strict 

application of 8 U.S.C. 1232(d) to mean 

adjudicated to completion in 180 days 

regardless of follow up requests for 

evidence from petitioners and 

dependence on timely actions by the 

United States Postal Service (USPS), 

State courts, and other agencies, would 

mean that USCIS would be required to 

deny adjudications that are incomplete 

when the 180-day deadline arrives 

because USCIS cannot legally grant SIJ 

classification before eligibility is 

definitively determined. The statute 

prescribes no penalty if the 180 days are 

exceeded, and DHS cannot approve (and 

courts cannot order DHS to approve) 

petitioners who are not legally eligible. 

Further, DHS does not believe that 

Congress wanted denial of the petition 

before it is fully adjudicated to be the 

result of that requirement. Therefore, 

DHS interprets the term ‘‘adjudicated’’ 

in that provision to mean that the 180 

days does not begin until the petition is 

complete, submitted with all of the 

required initial evidence as provided in 

the form instructions, and ready for 

adjudication. This interpretation is 

consistent with other, more recent, laws 

in which Congress has prescribed 

adjudication deadlines on USCIS. See, 

e.g., Continuing Appropriations Act, 

2021, Public Law 116–159, div. D, Title 

I, sec 4102(b)(2) (stating, ‘‘The required 

processing timeframe for each of the 

applications and petitions described in 

paragraph (1) shall not commence until 

the date that all prerequisites for 

adjudication are received by the 

Secretary of Homeland Security.’’). 

USCIS has extensive and lengthy 

experience and expertise in adjudicating 

SIJ cases as authorized by the statute, 

and interprets the ambiguity in 8 U.S.C. 

1232(d)(2) based on this expertise, 

irrespective of the holding in Moreno 

Galvez. Thus, USCIS will continue to 

follow regular practices as set out for all 

immigration petitions at 8 CFR 

103.2(b)(10)(i) for SIJ petitions that are 

not based on Washington State court 

orders, and will apply 8 CFR 

103.2(b)(10)(i) to those based on 

Washington State court orders.17

Comment: Four commenters 

requested that USCIS not pause the 180- 

day timeframe for the SIJ petition when 

an RFE relates only to a pending 

application for adjustment of status. 

Response: DHS agrees that an RFE 

that relates only to the application for 

adjustment, and not to the petition for 

SIJ classification, will not pause the 

180-day timeframe for adjudication of 

the petition for SIJ classification and is 

incorporating this suggestion at new 8 

CFR 204.11(g)(2). The 180-day 

timeframe relates only to the 

adjudication of the SIJ petition; 

therefore, RFEs, NOIDs, or requests 

unrelated to the SIJ petition do not 

impact the 180-day timeframe. 

Comment: One commenter suggested 

that the 180-day adjudication timeframe 

should apply to the SIJ-based 

adjustment of status application as well. 

Response: DHS declines to 

incorporate this recommendation 

because statutory language only 

provides for the 180-day timeframe to 

apply to petitions for SIJ classification, 

and not for SIJ-based adjustment of 

status. The law states that all 

applications for SIJ classification under 

section 101(a)(27)(J) of the INA, 8 U.S.C. 

1101(a)(27)(J), must be adjudicated by 

the Secretary of Homeland Security not 

later than 180 days after the date on 

which the application is filed. 8 U.S.C. 

1232(d)(2). Further, the NPRM did not 

propose such a change and explicitly 

stated that ‘‘USCIS interprets the 180- 

day timeframe to apply to adjudication 

of the Form I–360 petition for SIJ status 

only, and not to the Form I–485 

application for adjustment of status.’’ 76 

FR 54983. Finally, the adjudication of 

the adjustment of status application is 

distinct from the adjudication of the 

petition for SIJ classification in that visa 

number availability may cause delays to 

the adjudication of the adjustment of 

status application. This is a variable 

outside of DHS’ control that would 

potentially render a 180-day timeframe 

for adjustment applications impossible 

to adhere to in all cases. 

Comment: One commenter suggested 

that the rule could be improved by 

creating a structured timeline to ensure 

that DHS adheres to the 180-day 

timeframe. 

Response: DHS appreciates this 

comment aimed at ensuring the timely 

adjudication of SIJ petitions, but 

declines to impose detailed procedural 

steps, requirements, or information in 

its regulations. DHS will consider 

including additional guidelines 

regarding the timeframe for 

adjudications in subregulatory 

guidance. 

5. Decision 

Comment: Three commenters said 

that USCIS must provide notice to a 

petitioner that a denial is appealable to 

the AAO. They noted that the previous 

8 CFR 204.11(e) states that petitioners 

will be notified of the right to appeal 

upon denial, whereas the proposed rule 

does not contain such a statement. 

Response: DHS agrees that regulations 

on providing petitioners with notice of 

the right to appeal an adverse decision 

apply to SIJ petitioners. DHS has 

incorporated language clarifying that 

USCIS provides notice of the right to 

appeal to the petitioner at new 8 CFR 

204.11(h), but notes that all petitioners 

are notified of their right to appeal in 

accordance with 8 CFR 103.3. DHS 

defers to the provisions at 8 CFR 103.3 

and does not indicate the specific office 

to which the appeal must be submitted. 

This rule includes no procedural 

requirements, office names, locations, 

and responsibilities. Prescribing office 

names, filing locations, and 

jurisdictions via regulation is 

unnecessary and restricts USCIS’ ability 

to vary work locations as necessary to 

address its workload needs and better 

utilize its resources. 

G. No Parental Immigration Benefits 

Based on Special Immigrant Juvenile 

Classification 

DHS proposed that parents of the 

individual seeking or granted SIJ 

classification cannot be accorded any 

right, privilege, or status under the INA 

by virtue of their parentage. See 

proposed 204.11(g), 76 FR 54986. DHS 


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received several comments related to 

this requirement. 

Comment: Two commenters indicated 

general support for preventing a parent 

from gaining lawful status through an 

individual classified as an SIJ. One 

commenter requested clarification as to 

whether the parent of a petitioner can 

obtain lawful status by other means. 

Another commenter asked DHS to 

revisit its interpretation that this 

provision means that any parent (even 

a non-abusive parent) cannot gain 

lawful status through the individual 

granted SIJ classification, regardless of 

whether the individual goes on to 

receive LPR status or even United States 

citizenship. The commenter asked DHS 

to allow a custodial non-abusive parent 

to receive status under INA where the 

hardship to the parent-child familial 

relationship is one of the elements for 

the relief sought by the custodial nonabusive parent. The commenter noted 

that under DHS’s interpretation, an 

individual classified as an SIJ because of 

a history of abuse, neglect, or 

abandonment by one parent would 

potentially lose the protective parent’s 

care and custody if the parent were 

removed from the United States and was 

not eligible for any relief based on the 

parent-child relationship. 

Response: While DHS appreciates the 

comments and acknowledges the 

vulnerability of a child with SIJ 

classification, DHS believes it fully 

explained the statutory limitations in 

the proposed rule and will make no 

changes to this provision. DHS notes 

that the statute states ‘‘no natural parent 

or prior adoptive parent of any alien 

provided special immigrant juvenile 

status . . . shall thereafter, by virtue of 

such parentage, be accorded any right, 

privilege, or status under this Act.’’ INA 

section 101(a)(27)(J)(iii)(II), 8 U.S.C. 

1101(a)(27)(J)(iii)(II). At the time this 

language was created in the 1998 

Appropriations Act, eligibility did not 

apply to ‘‘one-parent’’ SIJ cases. TVPRA 

2008 changed that by adding the 

language regarding the nonviability of 

reunification with one or both parents. 

INA section 101(a)(27)(J)(i), 8 U.S.C. 

1101(a)(27)(J)(i). However, as noted in 

the proposed rule, Congress made no 

changes to the section on parental rights 

under the INA. The statute is clear that 

no parent can receive any right under 

the INA based on the parent-child 

relationship. The change suggested by 

the commenter would require 

legislation, and therefore, DHS cannot 

make this change in a rulemaking. DHS 

notes that a parent may qualify for forms 

of relief that are not based on the parentchild relationship. 

Comment: One commenter suggested 

that USCIS should take steps to ensure 

that parents who have been found by a 

juvenile court to be abusive are referred 

to ICE for additional screening for 

removability based on that abuse. The 

commenter stated that for example, ICE 

should determine whether the parent’s 

conduct constituted an aggravated 

felony, moral turpitude, or abuse under 

the Adam Walsh Act, and if probable 

cause is found, file a Notice to Appear 

(NTA) with the immigration court. 

Response: USCIS is in the process of 

publishing updated guidance for 

referring cases to ICE and issuing NTAs, 

which will be controlling. This 

guidance is not required to be codifed 

in regulations. Therefore, DHS will not 

incorporate the suggestion in the final 

rule. 

Comment: Several commenters noted 

that the paragraph heading of proposed 

8 CFR 204.11(g), ‘‘No parental rights,’’ is 

misleading and asked DHS to clarify 

that INA does not require the 

termination of parent rights as a 

prerequisite for SIJ classification. 

Response: DHS agrees with these 

commenters and has changed the 

paragraph headings in this rulemaking 

to ‘‘No parental immigration rights 

based on special immigrant juvenile 

classification.’’ at new 8 CFR 204.11(i) 

and 245.1(e)(3)(vi), respectively. In 

addition, DHS added language that 

termination of parental rights is not 

required for a qualifying parental 

reunification determination at new 8 

CFR 204.11(c)(1)(ii). 

H. Revocation 

The proposed rule discussed 

amending the grounds for revocation of 

the underlying SIJ classification while 

an adjustment of status application is 

pending based on the legislative 

changes to the SIJ eligibility 

requirements. DHS received many 

comments relating to the various 

revocation grounds. Some of these 

comments indicated general support for 

changing the revocation grounds. These 

commenters noted their support in 

particular for removing the revocation 

grounds based on the petitioner’s age, 

court dependency status, and long-term 

foster care eligibility. Because there 

were many comments relating to 

revocation, DHS is including the 

following table summarizing the 

automatic revocation grounds under this 

final rule: 

TABLE 3—AUTOMATIC REVOCATION GROUNDS IN THIS FINAL RULE * 

Revocation ground Corresponding regulatory cite 

By virtue of a court order, the individual reunifies with a maltreating parent named in the original court 

order that found reunification with that parent not viable.

8 CFR 204.11(j)(1)(i). 

There is a determination in administrative or judicial proceedings that it is in the individual’s best interest to 

be returned to the country of nationality or last habitual residence of the petitioner or their parent(s).

8 CFR 204.11(j)(1)(ii). 

* If any of the following revocation grounds arise after USCIS has approved an SIJ petition but prior to granting of adjustment of status to lawful permanent resident, then USCIS will revoke the SIJ classification. 

Regulations on revocation upon 

notice also apply to SIJ petitions. 8 CFR 

205.2. DHS did not specifically discuss 

revocation upon notice in the proposed 

rule because it is not changing those 

regulations, which already apply to SIJ 

petitions, via this rule. To ensure the 

public understands the various 

applicable revocation provisions, DHS 

added language that USCIS may revoke 

an approved SIJ petition upon notice at 

new 204.11(j)(2). 

1. Revocation Based on Reunification 

With a Parent 

Comment: Several commenters wrote 

that the rule should provide more 

clarity that DHS will not revoke SIJ 

classification if an individual reunifies 

with a non-abusive parent. A few of the 

commenters stated that DHS should not 

revoke SIJ classification because of 

reunification with one or both parents 

when a court had previously found that 

reunification was not a viable option. 

The commenters stated that revocation 

in that case was contrary to the language 

and purpose of TVPRA 2008. The 

commenters noted that INA does not 

require that reunification with a parent 

never be an option for the individual. 

These commenters thought revoking the 

SIJ classification on this ground would 

punish the individual and work against 

the permanency goals of the child 

welfare system. 


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Response: DHS believes that it is a 

reasonable interpretation to allow for 

revocation where the SIJ reunifies with 

the maltreating parent by virtue of a 

juvenile court order, as the goal of SIJ 

classification is relief from parental 

maltreatment by according them a legal 

immigration status. When a child can be 

reunified with their maltreating parent, 

there is no need for SIJ classification. 

DHS notes that this automatic 

revocation ground is limited to cases 

where a juvenile court order brings 

about the reunification or reverses the 

previous nonviability of parental 

reunification determination. USCIS will 

not revoke the SIJ classification where 

the individual reunites with a nonmaltreating parent. Automatic 

revocation based on reunification with a 

parent is only possible under this 

rulemaking where the individual 

reunifies with the maltreating parent 

named in the court order. 

2. Implementation of Changes to the 

Revocation Grounds 

Comment: Two commenters requested 

that DHS remove the ground for 

revocation upon the marriage of the 

approved SIJ from the previous 

regulation. One commenter wrote that 

an SIJ petitioner should not be required 

to stay unmarried, subject to automatic 

revocation, during the period in which 

USCIS is adjudicating adjustment of 

status. This commenter wrote that 

requiring a young adult to remain 

unmarried while waiting for a visa 

number to become available and for 

USCIS to process their application is an 

undue burden and reaches beyond the 

statute. Another commenter opined that 

marital status at the time of adjudication 

should not trigger automatic revocation 

of a petition unless marriage directly 

affected the dependency status of the 

petitioner. 

Response: DHS agrees with the 

commenters and has removed marriage 

of the SIJ beneficiary as a basis for 

automatic revocation, amending its 

prior interpretation of INA 245(h). INA 

245(h); 8 U.S.C. 1255(h) explicitly 

references ‘‘a special immigrant 

described in section 1101(a)(27)(J) of 

this title’’. Although the SIJ definition at 

section 1101(a)(27)(J) did not use the 

term child, USCIS incorporated the 

child definition at INA 101(b)(1) into 

the regulations. However, DHS 

recognizes that its prior interpretation 

has led to certain noncitizens with SIJ 

classification remaining unable to marry 

for years, just to maintain eligibility for 

adjustment. This is due to the prolonged 

wait times for visa number availability 

in the EB–4 category for noncitizens of 

certain countries, a consequence that 

was not envisioned when the original 

regulations were promulgated in 1993. 

Accordingly, DHS is removing marriage 

of the SIJ beneficiary as a basis for 

automatic revocation. DHS will 

maintain its long-standing regulatory 

requirement, consistent with Congress’ 

use of the term ‘‘child’’ in the 

‘‘Transition Rule’’ provision at section 

235(d)(6) of the TVPRA 2008, that a 

petitioner must be under 21 years of age 

and unmarried at the time of filing the 

SIJ petition. New 8 CFR 204.11(b)(2). 

See TVPRA 2008, section 235(d)(6), 

Public Law 110–457, 122 Stat. 5044, 

5080 (providing age-out protections for 

juveniles who are unmarried and under 

the age of 21 when their petitions are 

filed). 

Comment: One commenter requested 

that DHS clarify that USCIS cannot 

issue notices of intent to revoke (NOIRs) 

or revocations based on regulations, 

policy, or practice not in effect when the 

SIJ petition was approved. 

Response: DHS is not adding grounds 

for revocation, but we are codifying 

changes required by TVPRA 2008, 

which we have been following in our 

current and long-standing practice. 

Accordingly, DHS can issue NOIRs and 

revocations based on this regulation, 

consistent with the relevant statutes. As 

proposed, DHS has altered this 

provision consistent with TVPRA 2008 

section 235(d)(6), the ‘‘Transition Rule’’ 

provision, which provides that DHS 

cannot deny SIJ classification based on 

age if the noncitizen was a child on the 

date on which the noncitizen filed the 

petition. As required by this statutory 

change, DHS has removed revocation 

grounds based on the petitioner’s age 

and court dependency status. DHS also 

has removed the revocation ground 

based on a termination of the SIJ 

beneficiary’s eligibility for long-term 

foster care as this is no longer a 

requirement under INA section 

101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J). 

DHS is modifying the regulation in this 

rule to reflect INA section 

101(a)(27)(J)(i), 8 U.S.C. 1101(a)(27)(J)(i), 

to require automatic revocation of an 

approved SIJ petition if a court orders 

reunification with the SIJ beneficiary’s 

maltreating parent(s). However, DHS 

agrees that USCIS may only revoke SIJ 

classification, or any other immigration 

benefit, based on the requirements in 

place at the time of adjudication. 

I. Adjustment of Status to Lawful 

Permanent Resident (Adjustment of 

Status) 

1. Eligibility 

Comment: Several comments 

indicated that the proposed rule 

conflated eligibility standards for SIJ 

classification and for SIJ-based 

adjustment. 

Response: In response to these 

comments, DHS segregated the 

standards for SIJ-based adjustment at 8 

CFR 245.1(e)(3). DHS also has added 

clarifying language on eligibility for SIJbased adjustment of status at 8 CFR 

245.1(e)(3)(i). 

Comment: Two commenters said that 

DHS was not clear whether an 

individual must file for adjustment of 

status while under 21 years of age. 

Response: An individual does not 

have to meet an age requirement to 

qualify for adjustment of status based on 

SIJ classification. Petitioners do not 

need to remain under 21 years of age at 

the time of adjudication of the petition, 

and therefore would not need to be 

under 21 years of age at the time of SIJbased adjustment of status. DHS also 

has removed the age-related automatic 

revocation ground. 

2. Inadmissibility 

The TVPRA 2008 amendments to INA 

section 245(h)(2)(A) included additional 

grounds of inadmissibility from which 

SIJ adjustment of status applicants are 

exempt. The exempted grounds of 

inadmissibility for SIJ applicants now 

include: Public charge at INA section 

212(a)(4), 8 U.S.C. 1182(a)(4); labor 

certification at INA section 212(a)(5)(A), 

8 U.S.C. 1182(a)(5)(A); aliens present 

without admission or parole at INA 

section 212(a)(6)(A), 8 U.S.C. 

1182(a)(6)(A); misrepresentation at INA 

section 212(a)(6)(C), 8 U.S.C. 

1182(a)(6)(C); stowaways at INA section 

212(a)(6)(D), 8 U.S.C. 1182(a)(6)(D); 

documentation requirements for 

immigrants at INA section 212(a)(7)(A), 

8 U.S.C. 1182(a)(7)(A); and aliens 

unlawfully present at INA section 

212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). 

An SIJ applicant for adjustment of 

status may apply for a waiver pursuant 

to INA section 245(h)(2)(B), 8 U.S.C. 

1255(h)(2)(B), for certain grounds of 

inadmissibility. The following grounds 

of inadmissibility cannot be waived 

under INA section 245(h)(2)(B): 

Conviction of certain crimes at INA 

section 212(a)(2)(A), 8 U.S.C. 

1182(a)(2)(A) (except for a single offense 

of simple possession of 30 grams or less 

of marijuana); multiple criminal 

convictions at INA section 212(a)(2)(B), 

8 U.S.C. 1182(a)(2)(B) (except for a 

single offense of simple possession of 30 

grams or less of marijuana); controlled 

substance traffickers at INA section 

212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C) 

(except for a single offense of simple 

possession of 30 grams or less of 

marijuana); security and related grounds 


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at INA section 212(a)(3)(A), 8 U.S.C. 

1182(a)(3)(A); terrorist activities at INA 

section 212(a)(3)(B), 8 U.S.C. 

1182(a)(3)(B); foreign policy at INA 

section 212(a)(3)(C), 8 U.S.C. 

1182(a)(3)(C); and participants in Nazi 

persecution, genocide, or the 

commission of any act of torture or 

extrajudicial killing at INA section 

212(a)(3)(E), 8 U.S.C. 1182(a)(3)(E). 

Comment: Fifteen commenters wrote 

that DHS cannot prohibit SIJ petitioners 

from seeking waivers of grounds of 

inadmissibility to which petitioners 

may qualify if otherwise eligible. 

Commenters wrote that pursuant to INA 

section 212, 8 U.S.C. 1182, an applicant 

classified as an SIJ may apply for a 

waiver for any applicable ground of 

inadmissibility for which a waiver is 

available. The commenters stated that 

while certain grounds of inadmissibility 

cannot be waived under INA section 

245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B), they 

can be waived under other waiver 

provisions of the INA, such as INA 

section 212(h). These commenters wrote 

that they support the need for additional 

language on how inadmissibility 

provisions apply to SIJ petitioners. 

Another four commenters wrote that 

they support DHS in including the 

expanded statutory exemptions from 

certain inadmissibility grounds. 

Response: DHS will implement the 

expanded statutory exceptions from 

certain inadmissibility grounds without 

further change at new 8 CFR 

245.1(e)(3)(iii). DHS also has clarified 

how inadmissibility provisions, bars, 

and waivers apply to SIJs in this rule. 

See new 8 CFR 245.1(e)(3)(ii) through 

(v). Specifically, DHS provides that an 

applicant seeking to adjust status to LPR 

status based on their classification as an 

SIJ may be eligible for a waiver for 

humanitarian purposes, family unity, or 

when it is otherwise in the public 

interest pursuant to INA section 

245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B). 

DHS agrees with the commenters that 

INA section 245(h)(2)(B) does not make 

certain grounds of inadmissibility 

unwaivable for SIJs, it only limits the 

grounds for which such a waiver is 

available. Nothing in the final rule 

should be construed to bar an applicant 

classified as an SIJ from a waiver for 

which the applicant may be eligible 

pursuant to INA section 212. 

In addition, DHS provides that the 

only relevant adjustment of status bar 

that may apply to an SIJ adjustment 

applicant would be the bar from 

adjustment if deportable due to 

engagement in terrorist activity or 

association with terrorist organizations 

(INA section 237(a)(4)(B), 8 U.S.C. 

1227(a)(4)(B)). See new 8 CFR 

245.1(e)(3)(ii). For the limited purposes 

of INA section 245(a), SIJ applicants for 

adjustment will be deemed to have been 

paroled into the United States. SIJ 

applicants for adjustment are not subject 

to the bars at section 245(c)(2) of the 

INA that prevent anyone who has 

accepted unauthorized employment, 

failed to maintain status, or is in 

unlawful status at time of filing for 

adjustment from adjusting status. 

Applicants who are exempted from the 

bars at INA section 245(c)(2) also are not 

barred under INA section 245(c)(7) and 

(8). Because additional bars to 

adjustment at INA section 245(c)(1), (3), 

(4), and (5) only apply to applicants 

who have been or were otherwise 

admitted to the United States in a 

particular status, and SIJs are deemed 

parolees for the limited purpose of 

adjustment of status, the only relevant 

adjustment of status bar that may apply 

to an SIJ adjustment applicant would be 

that of being deportable due to 

engagement in terrorist activity or 

association with terrorist organizations. 

INA section 245(c)(6), 8 U.S.C. 

1255(c)(6); INA section 237(a)(4)(B), 8 

U.S.C. 1227(a)(4)(B). 

Comment: Two commenters said that 

in the event that SIJ petitioners enter the 

United States without inspection, 

admittance, or parole, they should first 

have to re-enter the United States in 

order to seek adjustment. 

Response: Pursuant to INA section 

245(h)(1), 8 U.S.C. 1255(h)(1), SIJs are 

deemed to have been paroled for the 

limited purpose of adjustment to LPR 

status. DHS is therefore unable to alter 

this requirement via this rulemaking as 

the commenter suggests. 

3. No Parental Immigration Rights Based 

on SIJ Classification 

In response to comments stating that 

DHS conflated the standards for SIJ 

classification and for SIJ-based 

adjustment of status in the proposed 

rule, in the final rule, DHS has 

separated the standards that relate to 

SIJ-based adjustment of status into 8 

CFR 245.1(e)(3). Because it also applies 

at the adjustment of status phase, DHS 

has added the prohibition on parental 

immigration benefits at 8 CFR 

245.1(e)(3)(vi). The language is similar 

to that used in 8 CFR 204.11(i), for 

which the DHS position is fully 

discussed in Section I.D.10 above. 

4. No Contact 

Comment: Several commenters 

suggested that DHS extend the 

prohibition on compelling SIJ 

petitioners to contact their alleged 

abuser(s) to subsequent SIJ-related 

proceedings, including adjustment of 

status based on approved SIJ 

classification. 

Response: Because SIJ petitions and 

SIJ-based adjustment of status 

applications may be filed concurrently, 

DHS agrees that it is reasonable to 

extend this prohibition to the 

adjustment of status phase. DHS 

implements this prohibition at new 8 

CFR 245.1(e)(3)(vii). 

5. Other Comments Related to 

Adjustment of Status 

Comment: One commenter said that 

because SIJs are exempt from the public 

charge inadmissibility ground, USCIS 

should exempt SIJs from having to pay 

a fee for filing the adjustment of status 

application. 

Response: DHS did not propose a 

change related to exempting SIJs from 

the Form I–485 fee and declines to 

include the commenters’ suggestion in 

this final rule. Nevertheless, the fee for 

an SIJ-based adjustment of status 

application may be waived on a per case 

basis. 

Comment: Three commenters stated 

that DHS should create a process for 

approved SIJs awaiting adjustment to 

receive deferred action and work 

authorization to ensure that vulnerable 

children’s rights are being adequately 

protected. 

Response: DHS did not propose to 

codify regulations that provide for a 

grant of deferred action and work 

authorization while the SIJ’s Form I–485 

is pending, and we are declining to 

create a deferred action process for 

approved SIJs awaiting adjustment in 

this final rule. Deferred action (DA) is a 

longstanding practice by which DHS 

may exercise discretion to forbear or 

assign lower priority to removal action 

in certain cases for humanitarian 

reasons, administrative convenience, or 

in the interest of the Department’s 

overall enforcement mission. DHS may 

grant DA to individuals with SIJ 

classification, as in all DA 

determinations, through an 

individualized, case-by-case, 

discretionary determination based on 

the totality of the evidence. DA is 

generally not an immigration benefit or 

program as those terms are known. If 

DHS decides to implement a DA 

process, it may be implemented via 

policy guidance using DHS’ inherent 

authority to exercise DA without 

rulemaking. Thus DHS is not including 

DA in this final rule. 

Comment: One commenter said that 

DHS should promulgate a regulation 

authorizing administrative closure of 

removal proceedings for cases when a 

Form I–360 has been approved, but a 


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18See Table 1, Summary of Statutory 

Amendments to SIJ Classification, for a list of all 

legislation impacting the statutory requirements of 

SIJ. 

19Total Cost in 2008 ($1,708) + Total Cost for Inhouse Attorney in 2008 ($235,137) = $236,845 

minimum cost in 2008. 

20Total Cost in 2017 ($33,099) + Total Cost for 

Outsourced Attorney in 2017 ($7,901,271) = 

$7,934,370 maximum cost in 2017. 

visa number is not yet available for 

adjustment. 

Response: The commenter’s request is 

beyond the scope of this rulemaking. 

DHS is unable to promulgate regulations 

authorizing administrative closure of 

removal proceedings as removal 

proceedings are under the sole purview 

of the U.S. Department of Justice. 

IV. Statutory and Regulatory 

Requirements 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

Executive Orders (E.O.) 12866 and 

13563 direct agencies to assess the costs 

and benefits of available regulatory 

alternatives and, if a regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. The Office of Information 

and Regulatory Affairs (OIRA), within 

the Office of Management and Budget 

(OMB), has designated this final rule a 

significant regulatory action though it is 

not an economically significant rule 

since it fails to meet the $100 million 

threshold under section 3(f)(1) of 

E.O.12866. Accordingly, OIRA has 

reviewed this regulation. 

1. Background and Summary 

As discussed in the preamble, DHS is 

amending its regulations governing the 

SIJ classification under INA section 

101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J), and 

related applications for adjustment of 

status to that of a lawful permanent 

resident under INA section 245(h), 8 

U.S.C. 1255(h). Specifically, this rule 

revises DHS regulations at 8 CFR 

204.11, 205.1, and 245.1 to reflect 

statutory changes, modify certain 

provisions, codify existing policies, and 

clarify eligibility requirements. 

The statutory foundation for SIJ 

classification as administered by USCIS 

has changed over time. The previous 

CFR provisions on SIJ petition filing 

requirements and procedures are 

incongruent with the several legislative 

changes enacted by Congress since the 

issuance of the final SIJ rule in 1993.18

In this final rule, DHS is incorporating 

these statutorily mandated changes and 

codifying its long-standing policies and 

practices already in place. 

The provisions of the final rule 

subject to this regulatory impact 

analysis are examined against two 

baselines: (1) The pre statutory baseline; 

and (2) the no action baseline. The pre 

statutory baseline evaluates the 

clarifications in petitioners’ eligibility 

made by TVPRA 2008. In analyzing 

each provision, DHS finds that these 

clarificatory changes have no 

quantifiable impact on eligibility under 

the pre statutory baseline. Stated 

alternatively, in the absence of the 

TVPRA 2008 provisions analyzed in the 

Sections (a) through (m) that follow, 

DHS has no evidence suggesting SIJ 

trends would have behaved differently 

in the intervening years. Consequently, 

this analysis focuses mainly on the no 

action baseline and those regulatory 

provisions affecting the petitioningadjudicating process and then analyzes 

the historical growth of demand for and 

grants of SIJ classification in order to 

assess the benefits and costs accruing to 

each stakeholder. Table 4 summarizes 

the final provisions of this rule with an 

economic impact. 

The final rule will impose costs on a 

group of petitioners who will now be 

eligible to submit Form I–601, Form I– 

485 and Form I–765 once they already 

have an approved Form I–360 under the 

no action baseline. This final rule will 

allow SIJ beneficiaries who get married 

prior to applying for LPR status to 

remain eligible to obtain permanent 

residence. This rule will also allow SIJ 

beneficiaries who have simple 

possession offenses to be eligible for 

Form I–601 if inadmissible under any of 

the provisions listed at INA section 

212(a)(2), 8 U.S.C. 1182(a)(2). DHS 

assumes that every petitioner who will 

not have their SIJ classification revoked 

because of marriage will file Form I–485 

which will lead to new costs (and 

benefits) to those petitioners. 

The final rule may impose costs of 

providing evidence regarding a State 

court determination. The changes in this 

final rule will not add additional costs 

or benefits to Form I–360 petitioners 

currently petitioning for SIJ 

classification under the no action 

baseline, however impacts will be 

discussed in the pre statutory baseline 

discussion. The changes in this final 

rule will codify statutory changes into 

regulation, modify certain provisions, 

codify existing policies, clarify 

eligibility requirements, and will not 

impact children applying for SIJ 

classification. DHS has required this 

additional evidence since the TVPRA 

2008. Due to data limitations that 

preclude identification of the unrelated 

factors that explain the changes in the 

volume of petitioners observed over 

time, DHS is limited in its assessment 

of Form I–360 data. 

The primary benefit of the rule to 

USCIS is greater consistency with 

statutory intent, and efficiency. The 

eligibility provisions offer an increased 

protection and quality of life for 

petitioners. By allowing reunification 

with non-abusive parents, the rule 

serves the child welfare goal of family 

permanency. By clarifying the 

requirements for qualifying juvenile 

court orders, the regulation will not 

require petitioners to provide evidence 

of the juvenile court’s continuing 

jurisdiction in certain circumstances, 

such as when a child welfare 

permanency goal is reached, such as 

adoption. See new 8 CFR 

204.11(c)(3)(ii)(A). The procedural 

changes to 8 CFR 204.11 to provide a 

timeframe for the adjudication process 

both clarify the requirements for 

petitioning for SIJ classification 

(streamlining consent, explaining 

documentation, outlining the interview, 

setting timeframe) and reduce the 

hurdles to successfully adjusting to LPR 

status once SIJ classification has been 

granted (incorporating expanded 

grounds for waivers of inadmissibility). 

Further, the rule centralizes and makes 

explicit the barriers from contact with 

alleged abusers to which the petitioner 

is entitled. Another benefit is that SIJ 

beneficiaries who marry prior to 

applying for LPR will also benefit from 

no longer having their SIJ classification 

revoked. 

DHS estimates the total quantified 

costs of the rule to reflect the total cost 

to file Form I–485 for SIJ beneficiaries 

who marry prior to applying for LPR 

and SIJ beneficiaries to file Form I–601 

who have simple possession offenses 

prior to applying for LPR, and may 

qualify for a waiver to an 

inadmissibility ground under INA 

section 212(a)(2), 8 U.S.C. 1182(a)(2). 

For the 10-year implementation 

period of the rule, DHS estimates the 

annualized costs of this rule will be 

$34,871 annualized at 3-percent and 7- 

percent under the no action baseline. 

The total cost to petitioners in the pre 

statutory baseline ranges from a 

minimum of $236,845 19 in FY 2008 to 


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19Total Cost in 2008 ($1,708) + Total Cost for Inhouse Attorney in 2008 ($235,137) = $236,845 

minimum cost in 2008. 

20Total Cost in 2017 ($33,099) + Total Cost for 

Outsourced Attorney in 2017 ($7,901,271) = 

$7,934,370 maximum cost in 2017. 

a maximum of $7,934,370 20 in FY 2017. 

Table 4 provides a more detailed 

summary of the final rule provisions 

and their economic impacts under the 

no action baseline. 

TABLE 4—SUMMARY OF MAJOR PROVISIONS AND IMPACTS BASED ON THE NO ACTION BASELINE

Final rule provisions Purpose Estimated benefits of the provision Estimated costs of the provision 

1. Inadmissibility Provisions: 

• An applicant for adjustment of status based on 

special immigrant juvenile classification is not 

subject to the following inadmissibility grounds: 

• (A) Public charge (INA section 212(a)(4)); 

• (B) Labor certification (INA section 

212(a)(5)(A)); 

• (C) Noncitizens present without admission 

or parole (INA section 212(a)(6)(A)); 

• (D) Misrepresentation (INA section 

212(a)(6)(C)); 

• (E) Stowaways (INA section 212(a)(6)(D)); 

• (F) Documentation requirements for immigrants (INA section 212(a)(7)(A)); and 

• (G) Noncitizens unlawfully present (INA 

section 212(a)(9)(B)). 

• Amend 8 CFR 204.11 to promote consistency with The William Wilberforce Trafficking Victims Protection Reauthorization 

Act of 2008 (TVPRA 2008), Public Law 110–457, 112 Stat. 5044 

(Dec. 23, 2008).

• SIJ beneficiaries who file Form 

I–601 who have simple possession offenses prior to applying 

for LPR, and may qualify for a 

waiver to an inadmissibility 

ground under INA section 

212(a)(2), 8 U.S.C. 1182(a)(2).

• This modification may allow SIJs 

with a simple possession offense, the chance to remain eligible for lawful permanent residence.

• DHS estimates the quantified 

costs of the provision rule to be 

approximately $4,791 which reflects the total cost for SIJ beneficiaries to file Form I–601 who 

have simple possession offenses prior to applying for LPR, 

and may qualify for a waiver to 

an inadmissibility ground under 

INA section 212(a)(2), 8 U.S.C. 

1182(a)(2). 

2. Marriage as a Ground for Automatic Revocation: 

• DHS has removed marriage of the SIJ beneficiary as a basis for automatic revocation, 

amending its prior interpretation of INA 245(h). 

INA 245(h); 8 U.S.C. 1255(h) explicitly references ‘‘a special immigrant described in section 1101(a)(27)(J) of this title’’. Although the SIJ 

definition at section 1101(a)(27)(J) did not use 

the term child, USCIS incorporated the child definition at INA 101(b)(1) into the regulations. 

• DHS is removing marriage of the 

SIJ beneficiary as a basis for 

automatic revocation. DHS will 

maintain its long-standing regulatory requirement, consistent 

with Congress’ use of the term 

‘‘child’’ in the ‘‘Transition Rule’’ 

provision at section 235(d)(6) of 

the TVPRA 2008, that a petitioner must be under 21 years of 

age and unmarried at the time of 

filing the SIJ petition.

• SIJ beneficiaries will no longer 

be subject to automatic revocation of their approved SIJ petition if they marry.

• DHS estimates total annual 

quantified costs of approximately 

$30,080 to which reflects the 

total cost of SIJ beneficiaries 

who file Form I–485 and, who 

marry prior to applying for LPR. 

• New 8 CFR 204.11(b)(2). See 

TVPRA 2008, section 235(d)(6), 

Public Law 110–457, 122 Stat. 

5044, 5080 (providing age-out 

protections for juveniles who are 

unmarried and under the age of 

21 when their petitions are filed). 

In addition to the impacts 

summarized above, and as required by 

the OMB Circular A–4,21 Table 5 

presents the prepared accounting 

statement showing the costs and 

benefits associated with this regulation. 

as required by OMB Circular A–4. 

TABLE 5—OMB A–4 ACCOUNTING STATEMENT FOR NO ACTION BASELINE

[$ millions, FY 2020—time period: FY 2022 through FY 2031] 

Category Primary 

estimate 

Minimum 

estimate 

Maximum 

estimate Source citation 

BENEFITS 

Monetized Benefits ..................................................... N/A Regulatory Impact Analysis (‘‘RIA’’). 

Annualized quantified, but un-monetized, benefits ..... N/A RIA. 

Unquantified Benefits .................................................. The eligibility provisions offer an increased protection and quality of 

life for petitioners. By allowing reunification with non-abusive 

parents, the rule serves the child welfare goal of family 

permanency. By clarifying the requirements for qualifying juvenile 

court orders, the regulation will not require petitioners to provide 

evidence of the juvenile court’s continuing jurisdiction in certain 

circumstances, such as when a child welfare permanency goal is 

reached (e.g., adoption). See new 8 CFR 204.11(c)(3)(ii)(A). 

RIA. 

DHS has removed marriage of the SIJ beneficiary as a basis for 

automatic revocation. This change is a benefit to petitioners, so they 

can remain eligible for lawful permanent residence and do not have 

to put marriage on hold. 


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22Noncitizens may file a Petition for Amerasian, 

Widow(er), or Special Immigrant (Form I–360) for 

SIJ classification, and if a visa number is available, 

they may file an Application to Register Permanent 

Residence or Adjust Status (Form I–485) to become 

a lawful permanent resident (LPR). Note that a grant 

of SIJ classification does not guarantee permanent 

resident status. 

23See USCIS, ‘‘Special Immigrant Juvenile 

Petitions,’’ Proposed Rule, 76 FR 54978, 54984–95 

(Sep. 6, 2011). 

TABLE 5—OMB A–4 ACCOUNTING STATEMENT FOR NO ACTION BASELINE—Continued 

[$ millions, FY 2020—time period: FY 2022 through FY 2031] 

Category Primary 

estimate 

Minimum 

estimate 

Maximum 

estimate Source citation 

The procedural changes to 8 CFR 204.11 to provide a timeframe for 

the adjudication process both clarify the requirements for petitioning 

for SIJ classification (streamlining consent, explaining 

documentation, outlining the interview, setting timeframe) and 

reduce the hurdles to successfully adjusting to LPR status once SIJ 

classification has been granted (incorporating expanded grounds for 

waivers of inadmissibility). Further, the rule centralizes and makes 

explicit the barriers from contact with alleged abusers to which the 

petitioner is entitled, promoting peace of mind. 

DHS has also expanded application of the simple possession 

exception to certain grounds of inadmissibility under the INA. This 

modification may allow SIJ-classified individuals to remain eligible 

for lawful permanent residence. 

COSTS 

Annualized monetized costs (7%) .............................. $0.03 N/A N/A RIA. 

Annualized monetized costs (3%) .............................. $0.03 N/A N/A 

Annualized quantified, but un-monetized, costs ......... N/A 

Qualitative (unquantified) costs .................................. N/A RIA. 

TRANSFERS 

Annualized monetized transfers: ‘‘on budget’’ ............ N/A 

From whom to whom? ................................................ N/A 

Annualized monetized transfers: ‘‘off-budget’’ ............

From whom to whom? 

N/A 

Miscellaneous analyses/category Effects Source citation 

Effects on State, local, or tribal governments ............ None RIA. 

Effects on small businesses ....................................... None RIA. 

Effects on wages ........................................................ None None. 

Effects on growth ........................................................ None None. 

2. Provisions of the Rule and Impacts 

Congress introduced SIJ classification 

in the INA as a means of providing 

lawful permanent residence to juvenile 

noncitizens in need of state intervention 

from parental maltreatment.22 As stated 

earlier, the provisions subject to this 

impact analysis either clarify a 

petitioner’s eligibility or alter the 

eligibility of SIJ beneficiaries who marry 

prior to applying for LPR. Following 

careful consideration of public 

comments received and relevant data 

provided by stakeholders, DHS has 

made several changes from the NPRM. 

The NPRM 23 stated that the fee impacts 

of this rule on each SIJ petitioner as well 

as on USCIS were neutral. In the NPRM, 

USCIS estimated that filings for SIJ 

classification will continue at about the 

same volume as they had in the 

relatively recent past. Based on public 

comments, DHS took a more in depth 

look at the costs and benefits, in this 

final rule. DHS has made several 

changes from the NPRM, outlined in 

Section I. D. above, which have resulted 

in costs to the petitioners for certain SIJ 

populations. 

(a) Requirements at Time of Filing and 

Adjudication 

The final rule will continue to require 

a petitioner seeking SIJ classification to 

be under 21 years of age at the time of 

filing the petition and unmarried at the 

time of filing. Clarifying language will 

specify that an SIJ petitioner is required 

to remain unmarried at the time their 

petition is adjudicated, and physically 

present in the United States at the time 

of filing and adjudication. The 

requirement that the petitioner be under 

the age of 21 at the time of filing the 

petition, rather than at the time of 

adjudication, reflects protections against 

aging out of eligibility for SIJ 

classification as promulgated by TVPRA 

2008. DHS estimates no impacts from 

this regulatory change, in this final rule. 

(b) DHS Consent 

The original statute for SIJ 

classification did not include a consent 

function, and therefore it was not in the 

previous regulation. As discussed in the 

above responses to public comments, 

DHS consent was first incorporated into 

the SIJ statute through amendments to 

the statute from the 1998 

Appropriations Act. In 2008 the TVPRA 

further modified the consent function to 

require that a petitioner obtain DHS 

consent to the grant of SIJ classification. 

The DHS consent authority is delegated 

to USCIS, and USCIS approval of the 

petition constitutes the granting of 

consent. For USCIS to consent, 

petitioners are required to establish that 

a primary reason the required juvenile 

court determinations were sought was to 

obtain relief from parental abuse, 

neglect, abandonment, or a similar basis 

under state law. 

The final rule includes evidentiary 

requirements for DHS consent. To 

receive DHS consent, the court order 

and any supplemental evidence 

submitted by the petitioner must 

include the following: The courtordered relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law granted by the juvenile 

court, and the factual basis for the 

juvenile court’s determinations. Consent 

is provided by approval of the petition, 

signifying that the Secretary of 

Homeland Security consents to granting 

the SIJ classification. See new 8 CFR 


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I I 

I I 
Federal Register / Vol. 87, No. 45 / Tuesday, March 8, 2022 / Rules and Regulations 13099 

24 DHS did not include a list of examples of 

qualifying placements to avoid confusion that 

qualifying placements are limited to those listed. 

204.11(b)(5). This additional evidence 

has been collected since TVPRA 2008. 

Because of this DHS only estimates this 

regulatory change, in this final rule in 

the pre statutory baseline. 

(c) Qualifying Juvenile Court Orders 

Under the initial SIJ statute, a 

noncitizen child was eligible for SIJ 

classification if he or she had been 

declared dependent on a juvenile court 

located in the United States and deemed 

eligible by that court for long-term foster 

care. As discussed earlier in the 

preamble, several statutory changes 

modified the requirements for SIJ 

eligibility, including the requirements 

for qualifying juvenile court orders. 

Reflecting these changes, the final rule 

requires a petitioner to obtain qualifying 

juvenile court determinations regarding 

dependency or custody, parental 

reunification, and best interests. Any 

juvenile court order(s) is required to 

meet certain validity requirements, 

including that it may be valid at the 

time of filing and adjudication, unless 

either of two exceptions apply. The first 

exception is for petitioners who, 

because of their age, no longer have a 

valid juvenile court order either prior to 

or subsequent to filing the SIJ petition. 

See new 8 CFR 204.11(c)(3)(ii)(B). The 

second is an exception that allows 

petitioners to remain eligible for SIJ 

classification if juvenile court 

jurisdiction terminated because 

adoption, placement in permanent 

guardianship, or another type of child 

welfare permanency goal (other than 

reunification with the offending parent) 

was reached. See new 8 CFR 

204.11(c)(3)(ii)(A). These changes reflect 

the statutory amendments from TVPRA 

2008 and are consistent with Congress’s 

purpose to protect children from 

parental maltreatment. Because of this, 

DHS only estimates the impact of this 

regulatory change, in this final rule in 

the pre statutory baseline. 

(d) Dependency or Custody 

In order to receive a qualifying courtordered juvenile dependency or custody 

determination, the petitioner must be 

declared dependent upon a juvenile 

court, or a juvenile court must have 

placed the petitioner in the custody of 

a State agency or department, or an 

individual or entity appointed by the 

State or juvenile court. 

A child may become subject to the 

jurisdiction of a State court through 

various iterations of custody or 

dependency, such as foster care, 

guardianship, adoption, or custody.24

Under the previous rule, children were 

required to be found dependent on the 

juvenile court and eligible for long-term 

foster care. The final rule gives 

deference to State courts on their 

determinations of custody or 

dependency under State law. 

Language in previous 8 CFR 

204.11(c)(4) states that a petitioner is 

required to be deemed ‘‘eligible for longterm foster care’’. The TVPRA 2008 

removed the requirement that 

petitioners be deemed eligible for longterm foster care, reflecting a shift in the 

child welfare system away from longterm foster care as a permanent option 

for children in need of protection from 

parental maltreatment. TVPRA 2008 

expanded eligibility to include 

noncitizens who cannot reunify with 

one or both parents and who are 

determined to be dependent on the 

juvenile court or placed in the custody 

of an individual or entity by the juvenile 

court. DHS expects that the expansion 

of eligibility introduced by the TVPRA 

2008 and codified here resulted in new 

petitions. DHS is unable to obtain data 

that would attribute the expansion in 

eligibility’s contribution to the increase 

in petitions received before and after 

TVPRA 2008. The implications of 

limitation are discussed further in the 

Costs and Benefits of the Final Rule 

section. DHS only estimates the impact 

of this regulatory change in the pre 

statutory baseline. 

(e) HHS Specific Consent 

The final rule incorporates a 

provision regarding HHS specific 

consent, which was created by the 1998 

Appropriations Act and modified by the 

TVPRA 2008. The regulation provides 

the limited circumstances under which 

USCIS requires evidence of HHS 

consent at new 8 CFR 204.11(d)(6). The 

language intentionally restricts the pool 

of children in HHS custody to whom the 

specific consent requirement applies, 

clarifying that it applies specifically to 

those who seek juvenile court orders 

changing their custodial placement, as 

was intended by both the TVPRA 2008 

and the subsequent Perez-Olano 

Settlement Agreement. Perez-Olano, et 

al. v. Holder, et al., Case No. CV 05– 

3604 (C.D. Cal. 2010). DHS estimates no 

impacts from this regulatory change, in 

this final rule. 

(f) Petition Requirements 

The final rule clarifies the 

requirements for submission of an SIJ 

petition (see new 8 CFR 204.11(d)), 

including providing additional 

information regarding what evidence 

can be provided to demonstrate that the 

juvenile court made a qualifying 

determination of similar basis under 

State law and when DHS consent is 

warranted. DHS estimates no impacts 

from this regulatory change, in this final 

rule. 

(g) Inadmissibility 

The final rule implements statutory 

revisions exempting SIJ adjustment of 

status applicants from four additional 

grounds of inadmissibility pursuant to 

changes made by the 2008 TVPRA. With 

these additional four grounds, an 

applicant filing for adjustment of status 

based on SIJ classification is not subject 

to the following inadmissibility 

provisions of section 212(a) of the Act: 

Public charge (INA section 212(a)(4), 8 

U.S.C. 1182(a)(4)); Labor certification 

(INA section 212(a)(5)(A), 8 U.S.C. 

1182(a)(5)(A)); Aliens present without 

admission or parole (INA section 

212(a)(6)(A), 8 U.S.C. 1182(a)(6)(A)); 

Misrepresentation (INA section 

212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C)); 

stowaways (INA section 212(a)(6)(D), 8 

U.S.C. 1182(a)(6)(D)); documentation 

requirements for immigrants (INA 

section 212(a)(7)(A), 8 U.S.C. 

1182(a)(7)(A)); and Aliens unlawfully 

present (INA section 212(a)(9)(B), 8 

U.S.C. 1182(a)(9)(B)). 

In the final rule, DHS has expanded 

application of the ‘‘simple possession 

exception,’’ to the grounds of 

inadmissibility under INA section 

212(a)(2)(A), 8 U.S.C. 1182(a)(2)(A) 

(conviction of certain crimes) and INA 

section 212(a)(2)(B), 8 U.S.C. 

1182(a)(2)(B) (multiple criminal 

convictions), in addition to the existing 

application of the simple possession 

exception at INA section 212(a)(2)(C), 8 

U.S.C. 1182(a)(2)(C) (controlled 

substance traffickers). See new 8 CFR 

245.1(e)(3)(v)(A). This modification was 

the result of a recent Board of 

Immigration Appeals decision in Matter 

of Moradel, which conducted a statutory 

analysis of the scope of the simple 

possession exception under INA section 

245(h)(2)(B) and concluded that it 

‘‘applies to all of the provisions listed 

under section 212(a)(2)’’ and that 

‘‘Congress intended the ‘simple 

possession’ exception in section 

245(h)(2)(B) to be applied broadly.’’ 28 

I&N Dec. 310, 314–315 (BIA 2021). DHS 

estimates the quantified costs of the 

provision to be approximately $4,791, 

which reflects the total cost for SIJ 

beneficiaries to file Form I–601 who 

have simple possession offenses prior to 

applying for LPR, and may qualify for a 


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25The protection at INA section 287(h) for a 

petitioner seeking SIJ classification from being 

compelled to contact an alleged abuser, or the 

abuser’s family member, was added by the Violence 

Against Women and Department of Justice 

Reauthorization Act of 2005 (VAWA 2005), Public 

Law 109–162, 119 Stat. 2960 (Jan. 5, 2006). 

26Calculation: ($18,240 Filing Fees) + ($11,840 

Opportunity Cost of Time) = $30,080 Total Cost. 

waiver to an inadmissibility ground 

under INA section 212(a)(2), 8 U.S.C. 

1182(a)(2). 

(h) Interviews 

USCIS may conduct interviews to 

clarify portions of the petition during 

adjudication; however, interviews are 

not required (see new 8 CFR 204.11(f)). 

The final rule also clarifies that while 

USCIS may limit the number of people 

present at the interview, the petitioner’s 

attorney or accredited representative 

will always be permitted to attend. It 

also provides that a ‘‘trusted adult’’ may 

be present, further clarifying the 

resources available to the petitioner 

during adjudication. 

(i) No Parental Immigration Rights 

The rule codifies the long-standing 

statutory provision that no natural or 

prior adoptive parent may derive 

immigration benefits through their 

relationship to an SIJ beneficiary. The 

rule further clarifies that this restriction 

remains in effect even after the SIJ 

becomes a lawful permanent resident or 

a United States citizen. See new 8 CFR 

204.11(i) and 245.1(e)(3)(vi). DHS 

estimates no impacts from this 

regulatory change, in this final rule. 

(j) No Contact 

The final rule provides that at no 

point during the adjudication process 

will a petitioner be required to contact 

an individual who allegedly battered, 

neglected, or abandoned the petitioner, 

or any family member of that person, 

during the petition or application 

process. See INA section 287(h), 8 

U.S.C. 1357(h); new 8 CFR 204.11(e) 

and 245.1(e)(3)(vii).25 In addition, for 

alignment with the language at INA 

section 101(a)(27)(J)(i) regarding the 

eligibility requirement that reunification 

not be viable with a petitioner’s 

parent(s) due to ‘‘abuse, neglect, 

abandonment, or a similar basis under 

state law,’’ DHS is including the term 

‘‘abused’’ at new 8 CFR 204.11(e) and 

245.1(e)(3)(vii). This regulatory change 

is based upon the statutory amendment 

to INA section 287(h) enacted by VAWA 

2005, which was intended to keep 

children safer. 

(k) Marriage as a Ground for Automatic 

Revocation 

DHS has removed marriage of the SIJ 

beneficiary as a basis for automatic 

revocation, amending its prior 

interpretation of INA 245(h). INA 

245(h); 8 U.S.C. 1255(h) explicitly 

references ‘‘a special immigrant 

described in section 1101(a)(27)(J) of 

this title’’. Although the SIJ definition at 

section 1101(a)(27)(J) did not use the 

term child, USCIS incorporated the 

child definition at INA 101(b)(1) into 

the regulations. However, DHS 

recognizes that its prior interpretation 

has led to certain noncitizens with SIJ 

classification remaining unable to marry 

for years, just to maintain eligibility for 

adjustment. This is due to the prolonged 

wait times for visa number availability 

in the EB–4 category for noncitizens of 

certain countries, a consequence that 

was not envisioned when the original 

regulations were promulgated in 1993. 

Accordingly, DHS is removing marriage 

of the SIJ beneficiary as a basis for 

automatic revocation. DHS will 

maintain its long-standing regulatory 

requirement, consistent with Congress’ 

use of the term ‘‘child’’ in the 

‘‘Transition Rule’’ provision at section 

235(d)(6) of the TVPRA 2008, that a 

petitioner must be under 21 years of age 

and unmarried at the time of filing the 

SIJ petition. New 8 CFR 204.11(b)(2). 

See TVPRA 2008, section 235(d)(6), 

Public Law 110–457, 122 Stat. 5044, 

5080 (providing age-out protections for 

juveniles who are unmarried and under 

the age of 21 when their petitions are 

filed). This provision may allow some 

SIJ beneficiaries to now be eligible to 

adjust status that otherwise would not 

under the no action baseline. The total 

cost to the newly eligible population to 

complete and file Form I–485 and Form 

G–28, where applicable is $30,080.26

(l) Timeframe for Decisions 

Pursuant to TVPRA 2008 (section 

235(d)(2), 8 U.S.C. 1232(d)(2)), the final 

rule specifies that in general, USCIS will 

make a decision on an SIJ petition 

within 180 days. See new 8 CFR 

204.11(g). This provision also clarifies 

when the 180-day period may begin and 

when it may pause due to delays caused 

by the petitioner, in accordance with 

longstanding regulation at 8 CFR 

103.2(b)(10)(i). Since this is a clarifying 

provision, DHS does not estimate any 

impacts from this regulatory change, in 

this final rule. 

(m) Special Immigrant Juvenile Petition 

Filing and Adjudication Process 

The overarching process for a 

petitioner to obtain immigration benefits 

as an SIJ is a three-step sequence: 

(1) Obtaining qualifying juvenile court 

order(s) containing the required judicial 

determinations for SIJ classification from a 

state juvenile court; 

(2) Filing a Form I–360 petition with 

USCIS for SIJ classification; and 

(3) Applying for LPR status using Form I– 

485 when a visa number is available. 

This final rule does not change this 

general process but makes some 

adjustments in accordance with 

statutory amendments related to SIJ 

classification. The statutory 

amendments codified in the regulation 

include the following: The DHS consent 

function; HHS specific consent; 

documentation for petitions; 

inadmissibility; interview procedures; 

no parental immigration benefits, no 

contact provisions; and timeframe for 

adjudication. 

Noncitizens may request SIJ 

classification using Form I–360 and 

accompanying Form G–28 if an attorney 

or representative files on behalf of the 

petitioner. The final rule will require 

additional documentation if the 

petitioner requires HHS consent and 

clarifies the types of evidence that may 

fulfill the requirements for a qualifying 

non-viability of reunification 

determination based on a similar basis 

under state law as well as the 

evidentiary requirements for DHS 

consent, for the no action baseline. The 

noncitizen filing a Form I–485 based on 

an approved SIJ petition is considered 

paroled into the United States for the 

limited purpose of eligibility for 

adjustment of status, even if the 

noncitizen entered the United States 

unlawfully. Form I–485 can either be 

filed concurrently with Form I–360 if a 

visa number is immediately available, or 

subsequent to approval of a Form I–360. 

An SIJ petitioner or beneficiary may 

apply for employment authorization 

pursuant to the pending adjustment 

application via Form I–765, Application 

for Employment Authorization. 

Applicants deemed inadmissible to 

the United States may submit an 

application for a waiver of certain 

grounds of inadmissibility, as provided 

by the final rule at new 8 CFR 

245.1(e)(3)(v). Form I–912, Request for 

Fee Waiver, is used to request a fee 

waiver for certain immigration forms 

and services based on a demonstrated 

inability to pay. Applicants submitting 

Form I–485, Application to Register 

Permanent Residence or Adjust Status, 

based on SIJ classification are eligible to 

seek a fee waiver for Form I–485 and 

related forms. 


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27Calculation: ((FY 2020 Form I–360 receipts 

18,788¥FY 2017 Form I–360 receipts 22,154)/FY 

2017 Form I–360 receipts 22,154) × 100) = ¥15 

percent (rounded). 

28See Instructions for Petition for Amerasian, 

Widow(er), or Special Immigrant (time burden 

estimate in the Paperwork Reduction Act section). 

Form I–360 https://www.uscis.gov/sites/default/ 

files/document/forms/i-360.pdf. OMB No. 1615– 

0020. Expires Jun. 30, 2022. A separate time burden 

of 3 hours and 5 minutes (3.08 hours) per response 

for Iraqi or Afghan Nationals employed by or on 

behalf of the U.S. Government in Iraq or 

Afghanistan, and 2 hours and 20 minutes (2.33 

hours) per response for Religious Workers. DHS 

does not expect an additional burden for Iraqi or 

Afghan Nationals employed by or on behalf of the 

U.S. Government in Iraq or Afghanistan or Religious 

workers. The public reporting burden for this 

collection of information is estimated at 2 hours 

and 5 minutes (2.08 hours) per response. 

3. Costs and Benefits of the Final Rule 

(a) Costs and Benefits of the Final Rule 

Relative to a Statutory Baseline 

This rule revises DHS regulations at 8 

CFR 204.11, 205.1, and 245.1 to reflect 

statutory changes, modify certain 

provisions, codify existing policies, and 

clarify eligibility requirements. The 

final rule may impose a higher burden 

on petitioners by requiring evidence 

that the juvenile court’s determination 

is legally similar to abuse, neglect, or 

abandonment under state law; however, 

DHS has required additional evidence 

from some petitioners since the TVPRA 

2008 on this issue. Because this 

additional evidence has been required 

for many years, DHS is unable to 

estimate how frequently this evidence is 

insufficient in petitioners’ filings or how 

much additional time or effort this 

might have required. 

Since its creation in 1990, USCIS has 

seen a significant increase in petitions 

for SIJ classification. Table 6 shows the 

total annual receipts for filings of Form 

I–360 during fiscal years (FYs) 2003 

through 2020. 

TABLE 6—APPROVALS, DENIALS, AND RECEIPTS OF PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

(FORM I–360) APPLICATION CLASS: SPECIAL IMMIGRANT JUVENILES, FOR FY 2003 THROUGH FY 2020 

Fiscal year Receipts Approvals Denials Revocations 

2003 ................................................................................................................. 79 33 8 0 

2004 ................................................................................................................. 202 132 32 1 

2005 ................................................................................................................. 327 246 35 1 

2006 ................................................................................................................. 485 412 34 1 

2007 ................................................................................................................. 659 577 45 0 

2008 ................................................................................................................. 1,137 1,045 73 1 

2009 ................................................................................................................. 1,369 1,281 69 3 

2010 ................................................................................................................. 1,646 1,537 82 2 

2011 ................................................................................................................. 2,226 2,095 98 2 

2012 ................................................................................................................. 2,967 2,788 155 3 

2013 ................................................................................................................. 3,996 3,756 148 20 

2014 ................................................................................................................. 5,815 5,349 323 26 

2015 ................................................................................................................. 11,528 10,767 651 70 

2016 ................................................................................................................. 19,572 18,223 1,121 99 

2017 ................................................................................................................. 22,154 19,471 2,399 23 

2018 ................................................................................................................. 21,899 20,500 1,111 6 

2019 ................................................................................................................. 20,783 19,733 688 3 

2020 ................................................................................................................. 18,788 17,220 418 1 

5-year Total * ............................................................................................ 103,196 95,147 5,737 132 

5-year Annual Average * .................................................................................. 20,639 19,029 1,147 26 

Note: The report reflects the most up-to-date data available at the time the system was queried. Database Queried: March. 5, 2021, System: 

USCIS C3 Consolidated via SASPME, Office of Policy and Strategy (OP&S), Policy Research Division (PRD). The data reflect the current status 

of the petitions received in each fiscal year. 

* 5-year calculations are based only on FY 2016 through FY 2020. 

Table 6 shows the total population in 

FY 2003 through FY 2020 that filed 

Form I–360 for SIJ classification. Over 

the five-year period from FY 2016 

through FY 2020, the number of Form 

I–360 receipts for SIJ classification 

ranged from a low of 18,788 in FY 2020 

to a high of 22,154 in FY 2017. The 

trend in the annual number of Form I– 

360 receipts for SIJ classification has 

steadily increased over the past few 

decades, but the annual receipts of Form 

I–360 has decreased in the past three 

FYs. From FY 2017 through FY 2020, 

the number of receipts of Form I–360 

has decreased by 15 percent.27 DHS is 

unable to quantify the portion of the 

observed increase in receipts in 2008 

and after which may have been the 

result of the expansion of eligibility 

triggered by TVPRA 2008. DHS does not 

have enough information to conclude on 

the exact reasons for the cause in the 

significant increases in applications 

over the past 12 years, and furthermore, 

DHS cannot determine if TVPRA 2008 

was the sole cause for the increased 

applications. As a result, DHS presents 

a range of possible impacts estimating a 

minimum and maximum cost to 

petitioners under the pre statutory 

baseline below. 

In addition to including the most 

current receipt and approval trends, the 

data presented in Table 6 are updated 

and differ from discussion of receipts 

and approvals for FY 2006 through FY 

2009 that appeared in the Notice of 

Proposed Rulemaking, which were 

obtained prior to USCIS data 

centralization initiatives. 

i. Form I–360, Petition for Amerasian, 

Widow(er), or Special Immigrant and 

Form G–28 

Although there is no fee to file Form 

I–360 to request SIJ classification, DHS 

estimates the public reporting time 

burden is 2 hours and 5 minutes (2.08 

hours), which includes the time for 

reviewing instructions, gathering the 

required documentation and 

information, completing the petition, 

preparing statements, attaching 

necessary documentation, and 

submitting the petition.28 DHS 

acknowledges that SIJ petitioners filing 

Form I–360 may incur additional costs 

obtaining judicial determinations and, 

in many instances, may elect to acquire 

legal representation. 

To estimate the opportunity costs of 

time for petitioners who are not using a 


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29 ‘‘Americans Are Seeing Highest Minimum 

Wage in History (Without Federal Help)’’ Ernie 

Tedeschi, The New York Times, April 24, 2019. 

Accessed at https://www.nytimes.com/2019/04/24/ 

upshot/why-america-may-already-have-its-highestminimum-wage.html (last visited June 25, 2020). 

30The benefits-to-wage multiplier is calculated as 

follows: ($38.60 Total Employee Compensation per 

hour)/($26.53Wages and Salaries per hour) = 

1.454964 = 1.45 (rounded). See U.S. Department of 

Labor, Bureau of Labor Statistics, Economic News 

Release, Employer Cost for Employee Compensation 

(December 2020), Table 1. Employer Costs for 

Employee Compensation by ownership (Dec. 2020), 

https://www.bls.gov/news.release/archives/ecec_

03182021.pdf (last visited September 2, 2021). 

31Calculation: (Effective Minimum Wage Rate) 

$11.80 × (Benefits-to-wage multiplier) 1.45 = $17.11 

per hour. 

32Calculation: (Effective Wage) $17.11 × 

(Estimated Opportunity of Cost to file Form I–360) 

2.08 hours = $35.59. 

33Calculation: (19,771 Form G–28/20,639 Form I– 

360 petitions) × 100 = 95.8 percent (rounded). 

34Calculation: 100 percent¥95.8 percent filing 

with Form G–28 = 4.2 percent only filing Form I– 

360. 

35See U.S. Department of Labor, Bureau of Labor 

Statistics, Occupational Employment Statistics, 

May 2020 National Occupational Employment and 

Wage Estimates-National, SOC 23–1011—Lawyers, 

https://www.bls.gov/oes/2020/may/oes_nat.htm 

(last visited March 31, 2021). 

36The benefits-to-wage multiplier is calculated as 

follows: ($38.60 Total Employee Compensation per 

hour)/($26.53Wages and Salaries per hour) = 

1.454964 = 1.45 (rounded). See U.S. Department of 

Labor, Bureau of Labor Statistics, Economic News 

Release, Employer Cost for Employee Compensation 

(December 2020), Table 1. Employer Costs for 

Employee Compensation by ownership (Dec. 2020), 

https://www.bls.gov/news.release/archives/ecec_

03182021.pdf (last visited March 31, 2021). 

37Calculation of weighted mean hourly wage for 

lawyers: $103.81 average hourly total rate of 

compensation for lawyers = $71.59 average hourly 

wage rate for lawyers × 1.45 benefits-to-wage 

multiplier. 

38Calculation: (Effective Wage) $103.81 × 

(Estimated Opportunity of Cost to file Form I–360) 

2.08 = $215.92. 

lawyer, USCIS uses an average total rate 

of compensation based on the effective 

minimum wage. SIJ petitioners are 

young with limited work experience/ 

education; therefore, their wages would 

likely be in line with a lower wage. As 

reported by The New York Times 

‘‘[t]wenty-nine states and the District of 

Columbia have state-level minimum 

hourly wages higher than the federal 

[minimum wage],’’ as do many city and 

county governments. Analysis by The 

New York Times estimates that ‘‘the 

effective minimum wage in the United 

States . . . [was] $11.80 an hour in 

2019.’’ 29 DHS relies on this more robust 

minimum wage of $11.80 per hour, as 

a reasonable estimate of the per hour 

wages used to estimate the opportunity 

costs of time. In order to estimate the 

fully loaded wage rates, to include 

benefits, USCIS used the benefits-towage multiplier of 1.45 and multiplied 

it by the prevailing minimum hourly 

wage rate. DHS accounts for worker 

benefits when estimating the 

opportunity cost of time by calculating 

a benefits-to-wage multiplier using the 

most recent Department of Labor (DOL), 

Bureau of Labor Statistics (BLS) report 

detailing average compensation for all 

civilian workers in major occupational 

groups and industries. DHS estimates 

the benefits-to-wage multiplier is 1.45.30

The fully loaded per hour wage rate for 

someone earning the prevailing 

minimum wage rate is $17.11.31

Therefore, DHS estimates that the 

opportunity cost for each petitioner is 

$35.59 per response for the SIJ 

petition.32

For petitioners who acquire attorneys 

or accredited representation to petition 

on their behalf, Form G–28 must be filed 

in addition to Form I–360. Table 7 

shows historical Form G–28 filings by 

attorneys or accredited representatives 

accompanying SIJ petitions. DHS notes 

that these forms are not mutually 

exclusive. Based on the 5-year average, 

DHS estimates 95.8 percent 33 of Form I– 

360 petitions are filed with a Form G– 

28. The remaining 4.2 percent 34 of 

petitions are filed without a Form G–28. 

TABLE 7—FORM I–360, SIJ PETITIONS SUBMITTED TO USCIS FROM FY 2016 THROUGH FY 2020 WITH A FORM G–28 

Fiscal year 

Number of 

Form I–360 

receipts 

Number of 

petitions filed 

with Form G–28 

2016 ................................................................................................................................................................. 19,572 17,830 

2017 ................................................................................................................................................................. 22,154 21,252 

2018 ................................................................................................................................................................. 21,899 21,306 

2019 ................................................................................................................................................................. 20,783 20,244 

2020 ................................................................................................................................................................. 18,788 18,221 

Total .......................................................................................................................................................... 103,196 98,853 

5-year Annual Average .................................................................................................................................... 20,639 19,771 

Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5, 2021 & USCIS Analysis. 

DHS estimates the opportunity cost of 

time for attorneys or accredited 

representatives using an average hourly 

wage rate $71.59 for lawyers.35

However, average hourly wage rates do 

not account for worker benefits such as 

paid leave, insurance, and retirement. 

DHS accounts for worker benefits when 

estimating the opportunity cost of time 

by calculating a benefits-to-wage 

multiplier using the most recent 

Department of Labor (DOL), Bureau of 

Labor Statistics (BLS) report detailing 

average compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates the 

benefits-to-wage multiplier is 1.45.36

DHS calculates the average total rate of 

compensation as $103.81 37 per hour for 

an in house lawyer. Therefore, DHS 

estimates that the opportunity cost for 

each petitioner is $215.92 per response 

for the in house attorney.38 DHS 

recognizes that an entity may not have 

lawyers embedded in their organization 

and may choose, but is not required, to 

outsource the preparation of these 

petitions and, therefore, presents two 

wage rates for lawyers to account for the 

often higher salaries of lawyers. DHS 

multiplied the average hourly U.S. wage 

rate for lawyers by 2.5 for a total of 


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39The DHS analysis in, ‘‘Exercise of TimeLimited Authority to Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program’’ (May 31, 2018), 

available at https://www.federalregister.gov/ 

documents/2018/05/31/2018-11732/exercise-oftime-limited-authority-to-increase-the-fiscal-year2018-numerical-limitation-for-the, used a multiplier 

of 2.5 to convert in-house attorney wages to the cost 

of outsourced attorney wages (Last visited July 28, 

2021). Also, the analysis in the DHS ICE rule, 

‘‘Final Small Entity Impact Analysis: Safe-Harbor 

Procedures for Employers Who Receive a No-Match 

Letter’’ at G–4 (Aug 25, 2008), available at http:// 

www.regulations.gov/#!documentDetail;D=ICEB2006-0004-0922 used 2.5 as a multiplier for 

outsourced labor wages in this rule, pages 143–144. 

40Calculation: (Mean hourly wage of Lawyers) 

$71.59 × (Benefits-to-wage multiplier) 2.5 = $178.98 

per hour for an outsourced lawyer. 

41Calculation: (Effective Wage) $178.98 × 

(Estimated Opportunity of Cost to file Form I–360) 

2.08 hours = $372.28. 

42Calculation: 100 percent ¥ 95.8 percent filing 

with Form G–28 = 4.2 percent only filing Form I– 

360. 

43Total Cost in 2008 ($1,708) + Total Cost for Inhouse Attorney in 2008 ($235,137) = $236,845 

minimum cost in 2008. 

44Total Cost in 2017 ($33,099) + Total Cost for 

Outsourced Attorney in 2017 ($7,901,271) = 

$7,934,370 maximum cost in 2017. 

$178.98 39 to approximate an hourly 

billing rate for an outsourced lawyer.40

Therefore, DHS estimates that the 

opportunity cost for each petitioner is 

$372.28 per response for the out sourced 

attorney.41

DHS uses the historical Form G–28 

filings of 95.8 percent (Table 7) by 

attorneys or accredited representatives 

accompanying SIJ petitions as a proxy 

for how many may accompany Form I– 

485 petitions. The remaining 4.2 

percent 42 of SIJ petitions are filed 

without a Form G–28. Table 11 shows 

the total receipts split out by the type of 

filer based on associated Form G–28 

submissions. 

TABLE 8—NUMBER OF FORMS FILED BY PETITIONERS AND ACCREDITED REPRESENTATIVES

Fiscal year Receipts 

Number of forms 

filed by 

petitioners 

(4.2%) 

Number of forms 

filed by 

accredited 

by legal 

representation 

(95.8%) 

2008 ................................................................................................................................. 1,137 48 1,089 

2009 ................................................................................................................................. 1,369 57 1,312 

2010 ................................................................................................................................. 1,646 69 1,577 

2011 ................................................................................................................................. 2,226 93 2,133 

2012 ................................................................................................................................. 2,967 125 2,842 

2013 ................................................................................................................................. 3,996 168 3,828 

2014 ................................................................................................................................. 5,815 244 5,571 

2015 ................................................................................................................................. 11,528 484 11,044 

2016 ................................................................................................................................. 19,572 822 18,750 

2017 ................................................................................................................................. 22,154 930 21,224 

2018 ................................................................................................................................. 21,899 920 20,979 

2019 ................................................................................................................................. 20,783 873 19,910 

2020 ................................................................................................................................. 18,788 789 17,999 

Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5, 2021 & USCIS Analysis. 

DHS does not know what caused the 

increase in receipts over the past 13 

years. The increase in receipts could be 

due to TVPRA 2008 or it could be a 

result of a number of other things 

outside the scope of this rulemaking. 

DHS does not know how many 

petitioners used an in-house lawyer 

compared to an outsourced lawyer, so 

both estimates are shown in Table 9. 

The table shows the range of total cost 

incurred since TVPRA 2008 changes. 

The total cost to petitioners since 

TVPRA 2008 range from a minimum of 

$236,845 43 in FY 2008 to a maximum 

of $7,934,370 44 in FY 2017. 

TABLE 9—RANGE OF POTENTIAL TOTAL COSTS FOR FILERS BY TYPE AND BY YEAR

Fiscal year Forms filed by 

petitioner 

Forms filed by 

accredited 

by legal 

representation 

Total cost for 

petitioners 

($35.59/each) 

Total cost for 

in-house 

attorney 

($215.92/each) 

Total cost for 

an outsourced 

attorney 

($372.28/each) 

2008 ............................................................... 48 1,089 $1,708 $235,137 $405,413 

2009 ............................................................... 57 1,312 2,029 283,287 488,431 

2010 ............................................................... 69 1,577 2,456 340,506 587,086 

2011 ............................................................... 93 2,133 3,310 460,557 794,073 

2012 ............................................................... 125 2,842 4,449 613,645 1,058,020 

2013 ............................................................... 168 3,828 5,979 826,542 1,425,088 

2014 ............................................................... 244 5,571 8,684 1,202,890 2,073,972 

2015 ............................................................... 484 11,044 17,226 2,384,620 4,111,460 

2016 ............................................................... 822 18,750 29,255 4,048,500 6,980,250 

2017 ............................................................... 930 21,224 33,099 4,582,686 7,901,271 

2018 ............................................................... 920 20,979 32,743 4,529,786 7,810,062 

2019 ............................................................... 873 19,910 31,070 4,298,967 7,412,095 

2020 ............................................................... 789 17,999 28,081 3,886,344 6,700,668 

Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5, 2021 & USCIS Analysis. 


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45See Instructions for Instructions for 

Application to Register Permanent Residence or 

Adjust Status. Form I–485. OMB No. 1615–0023. 

Expires March 31, 2023. Accessed https://

www.uscis.gov/sites/default/files/document/forms/ 

i-485instr.pdf (last visited March 22, 2021). 

47See Instructions for Application for Waiver of 

Grounds of Inadmissibility. Form I–601. OMB No. 

1615–0029. Expires July 31, 2021. Accessed at 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-601instr-pc.pdf (last visited March 22, 

2021). 48Calculation: (Fully-loaded Effective Wage) 

$17.11 × (Estimated Opportunity Cost to file Form 

I–601) = $17.11 × 1.75 = $29.94. 49Calculation: Estimated opportunity cost per 

person filing ($29.94) + Fee for Form I–601 ($930) 

= $959.94 50See Instructions for Application for 

Employment Authorization. Form I–765. OMB No. 

1615–0040. Expires July 31, 2022. Accessed at 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-765instr.pdf (last visited March 22, 2021). 51Calculation: (Effective wage) $17.11 × 

(Estimated Opportunity Cost to file Form I–765) = 

$17.11 × 4.75 = $81.27. 

52See Instructions for Request for Fee Waiver. 

Form I–912. OMB No. 1615–0116. Expires 09/30/ 

2024. Accessed at https://www.uscis.gov/sites/ 

default/files/document/forms/i-912instr.pdf (last 

visited October 19, 2021). 

53Calculation: (Fully-loaded Effective Wage) 

$17.11 × (Estimated Opportunity Cost to file Form 

I–912) 2.55 = $43.63. 

ii. Form I–485, Application To Register 

Permanent Residence or Adjust Status 

To obtain permanent residence as a 

SIJ, a noncitizen must file a Form I–485, 

Application to Register Permanent 

Residence or Adjust Status. If an 

immigrant visa is not available at the 

time of filing, the applicant will not be 

able to apply until such a visa becomes 

available. SIJs are not exempt from the 

general adjustment requirement that 

applicants be inspected and admitted or 

inspected and paroled. See INA 245(a); 

8 CFR 245.1(e)(3). However, a 

noncitizen filing an adjustment of status 

application based on an approved SIJ 

petition is considered paroled into the 

United States for the limited purpose of 

adjustment under INA 245(a). 

Accordingly, the beneficiary of an 

approved SIJ petition is treated for 

purposes of the adjustment application 

as if the beneficiary has been paroled, 

regardless of his or her manner of arrival 

in the United States. See INA 245(h)(1). 

Because DHS is unable to describe the 

nationality and other circumstances of 

the affected population, it is not 

possible to quantify if or when 

individuals affected by the rule will file 

a Form I–485 based on the pre statutory 

baseline. 

The reported burden to the petitioners 

estimated for collection of information 

and completion for the Form I–485 45 is 

6 hours and 42 minutes (6.70 hours). 

Form I–485 has a fee of $1,140, with 

certain applicants under the age of 14 

years old pay a fee of $750 for Form I– 

485. 

DHS is unaware of the quantity of 

petitioners that went on to file Form I– 

485 after TVPRA 2008; however, DHS 

estimates that the estimated opportunity 

cost per person filing Form I–485 is 

$114.64.46 SIJ applicants for adjustment 

of status are eligible to submit Form I– 

912, Request for Fee Waiver. The total 

cost for a petitioner to file Form I–485 

would be $864.64 if they are under the 

age of 14 years and $1,254.64 for those 

14 years and older. 

iii. Form I–601, Application for Waiver 

of Grounds of Inadmissibility 

Applicants for adjustment of status 

based on SIJ classification who are 

inadmissible under certain grounds may 

seek a waiver of inadmissibility via 

Form I–601, Application for Waiver of 

Grounds of Inadmissibility. The time 

burden for Form I–601 is estimated at 1 

hour and 45 minutes 47 (1.75 hours) per 

application. 

DHS is unaware of the quantity of 

petitioners that went on to file Form I– 

601 after changes to TVPRA 2008. The 

estimated opportunity cost per person 

filing is estimated at $29.94.48 Form I– 

601 has a filing fee of $930, for those to 

whom it applies; however, SIJ 

applicants for adjustment of status are 

eligible to submit Form I–912, Request 

for Fee Waiver. The total cost for a 

petitioner to file Form I–601 would be 

$959.94 49 based on the pre statutory 

baseline. 

iv. Form I–765, Application for 

Employment Authorization 

The affected population of newly 

eligible SIJ classified individuals who 

have filed a Form I–485, may go on to 

file a Form I–765, to apply for an 

Employment Authorization Document 

(EAD). Because the rule does not 

obligate SIJ classified individuals to 

seek employment authorization and it is 

not known what portion of the affected 

population have gone on to apply for an 

EAD due to TVPRA 2008, DHS does not 

know the number of SIJ classified 

individuals who went on to file Form I– 

765; therefore, DHS cannot estimate the 

total cost for the pre statutory baseline 

and only shows the per unit cost. The 

fee of $410.00 for Form I–765 is not 

shown as a cost of this rule. The public 

reporting burden for the collection of 

information for Form I–765 is estimated 

at 4 hours and 45 minutes (4.75 hours) 

per response.50 USCIS uses an average 

total rate of compensation based on the 

effective minimum wage for SIJ 

petitioners, as explained previously. 

This amounts to an estimated 

opportunity cost of $81.27 per response 

for applications.51 The total cost for a 

petitioner to file Form I–765 would be 

$491.27. 

v. Form I–912, Request for Fee Waiver 

Form I–912 is used to request a fee 

waiver for certain immigration forms 

and services based on a demonstrated 

inability to pay. Applicants submitting 

Form I–485, Application to Register 

Permanent Residence or Adjust Status, 

Form I–601, Application for Waiver of 

Grounds of Inadmissibility and Form I– 

765, Application for Employment 

Authorization are eligible to seek a fee 

waiver if they are applying for lawful 

permanent resident status based on SIJ 

classification. 

DHS did not track how many SIJ 

petitioners successfully requested fee 

waivers due to the TVPRA 2008 

changes, but anticipates that most of 

them qualify based on income or 

hardship. Thus, the analysis presents 

only opportunity costs for the related 

forms some of the noncitizens eligible 

for SIJ under the proposed rule may 

choose to file. Because DHS does not 

know the number of SIJ classified 

individuals who went on to file Form I– 

912 for subsequent immigration benefit 

requests, DHS cannot estimate the total 

cost for the pre statutory baseline and 

only shows the per unit cost. 

The public reporting burden for this 

collection of information for this form is 

estimated at 2 hours and 33 minutes 

(2.55 hours) per response, including the 

time for reviewing instructions, 

gathering the required documentation 

and information, completing the 

request, preparing statements, attaching 

necessary documentation, and 

submitting the request.52 As explained 

above, USCIS uses an average total rate 

of compensation based on the effective 

minimum wage for SIJ petitioners. 

Multiplying the fully-loaded hourly 

wage rate of $17.11 by the burden of 2 

hours and 33 minutes (2.55 hours) 

equals an estimated opportunity cost of 

$43.63 for SIJ applicants requesting a fee 

waiver using Form I–912 based on the 

pre statutory baseline.53

(b) Costs and Benefits of the Final Rule 

Relative to No Action Baseline 

This final rule will impose new costs 

on the population of juvenile 

immigrants granted SIJ classification 

who choose to marry prior to filing 

Form I–485 to register as a permanent 

resident. It will also allow SIJs who are 

inadmissible under INA sections 

212(a)(2)(A), (B) and (C) because of a 

single offense of simple possession of 30 

grams or less of marijuana to be eligible 

to apply for a waiver of inadmissibility 


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54Calculation: (19,771 Form G–28/20,639 Form I– 

360 petitions) × 100 = 95.8 percent (rounded). 

55Calculation: 100 percent ¥ 95.8 percent filing 

with Form G–28 = 4.2 percent only filing Form I– 

360. 

by filing a Form I–601, Application for 

Waiver of Grounds of Inadmissibility. 

The cost of the final rule impacts SIJ 

beneficiaries who get married prior to 

applying for LPR status and those now 

eligible for adjustment of status with a 

minor drug related charge. The final 

rule will impose costs related to this 

population filing Form I–485 and Form 

I–601 in the no action baseline. 

DHS expects the final rule to affect 

the following stakeholder groups: 

petitioners for SIJ classification; state 

juvenile courts and appellate courts; 

and the Federal Government. 

i. Regulatory Provisions: The 

Petitioning-Adjudication Process 

a. Form I–485, Application To Register 

Permanent Residence or Adjust Status 

To obtain permanent residence as a 

SIJ, a noncitizen must file a Form I–485, 

Application to Register Permanent 

Residence or Adjust Status. If an 

immigrant visa is not available at the 

time of filing, the applicant will not be 

able to apply until such a visa becomes 

available. 

In this final rule, DHS is no longer 

requiring that an approved Form I–360 

petition be automatically revoked if the 

beneficiary marries prior to applying for 

or being approved for adjustment of 

status to lawful permanent resident. To 

estimate the population that will be 

affected by removing the revocation 

based on marriage provision, DHS 

analyzed historical data on the ages of 

petitioners who received revocations. 

DHS assumes that those who filed for 

SIJ under the age of 15 would likely not 

have had their petitions revoked based 

on marriage. DHS also assumes that 

revocations for those who filed at 21 or 

older may have been based on having 

been approved in error due to having 

filed after turning 21. Using the data 

from Table 10, DHS estimates the 5-year 

average for the newly eligible 

population to be 16 petitioners 

annually. DHS does not know the 

specific reason each petition was 

revoked and does not rule out the 

possibility that all or none of these 

petitions were revoked due to marriage. 

For the purpose of this analysis, DHS 

presents an upper bound of 16 petitions 

and a lower bound of zero petitions 

annually who will now be eligible to 

apply for LPR status. Filing Form I–485 

is included as a direct, quantified cost 

of this final rule for the population of 

SIJ beneficiaries who will not be 

revoked due to marriage. 

TABLE 10—NUMBER OF FORM I–360 PETITIONS REVOKED BY AGE, FOR FY 2016 THROUGH FY 2020 

Fiscal year 

Age range 

Total 

0–15 16–20 21+ 

2016 ................................................................................................................. 21 59 19 99 

2017 ................................................................................................................. 4 14 5 23 

2018 ................................................................................................................. 0 6 0 6 

2019 ................................................................................................................. 1 2 0 3 

2020 ................................................................................................................. 0 0 1 1 

Total .......................................................................................................... 26 81 25 132 

5-year Annual Average .................................................................................... 5 16 5 26 

Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5, 2021 & USCIS Analysis. 

This rule will allow approved SIJ 

beneficiaries who get married prior to 

applying for LPR status and remain 

eligible to obtain permanent residence. 

DHS assumes that every petitioner who 

will be newly eligible will file Form I– 

485 which will lead to new costs (and 

benefits) to those petitioners. For those 

who acquire legal representation to 

petition on their behalf, Form G–28 

must be filed in addition to Form I–485. 

DHS does not know the number of SIJ’s 

who then went on to submit Form I–485 

petitions that would be accompanied by 

Form G–28. 

For petitioners who acquire attorneys 

or accredited representation to petition 

on their behalf, Form G–28 must be filed 

in addition to Form I–360. Table 11 

shows historical Form G–28 filings by 

attorneys or accredited representatives 

accompanying SIJ petitions. DHS notes 

that these forms are not mutually 

exclusive. Based on the 5-year average, 

DHS estimates 95.8 percent 54 of Form I– 

360 petitions are filed with a Form G– 

28. The remaining 4.2 percent 55 of 

petitions are filed without a Form G–28. 

TABLE 11—FORM I–360, SIJ PETITIONS SUBMITTED TO USCIS, FOR FY 2016 THROUGH FY 2020 

Fiscal year 

Number of 

Form I–360 

receipts 

Number of 

petitions filed 

with Form G–28 

2016 ............................................................................................................................................................. 19,572 17,830 

2017 ............................................................................................................................................................. 22,154 21,252 

2018 ............................................................................................................................................................. 21,899 21,306 

2019 ............................................................................................................................................................. 20,783 20,244 

2020 ............................................................................................................................................................. 18,788 18,221 

Total ...................................................................................................................................................... 103,196 98,853 

5-year Annual Average ................................................................................................................................ 20,639 19,771 

Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March. 5, 2021 & USCIS Analysis. 


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56See U.S. Department of Labor, Bureau of Labor 

Statistics, Occupational Employment Statistics, 

May 2020 National Occupational Employment and 

Wage Estimates-National, SOC 23–1011—Lawyers, 

https://www.bls.gov/oes/2020/may/oes_nat.htm 

(last visited March 31, 2021). 

57The benefits-to-wage multiplier is calculated as 

follows: ($38.60 Total Employee Compensation per 

hour)/($26.53 Wages and Salaries per hour) = 

1.454964 = 1.45 (rounded). See U.S. Department of 

Labor, Bureau of Labor Statistics, Economic News 

Release, Employer Cost for Employee Compensation 

(December 2020), Table 1. Employer Costs for 

Employee Compensation by ownership (Dec. 2020), 

https://www.bls.gov/news.release/archives/ecec_

03182021.pdf (last visited March 31, 2021). 

58Calculation of weighted mean hourly wage for 

lawyers: $103.81 average hourly total rate of 

compensation for lawyers = $71.59 average hourly 

wage rate for lawyers × 1.45 benefits-to-wage 

multiplier. 

59Calculation: 100 percent ¥ 95.8 percent filing 

with Form G–28 = 4.2 percent only filing Form I– 

360. 

60Calculation: (95.8 percent × 16 newly eligible 

population) = 15 new population filing Forms I–485 

and G–28. 

61Calculation: (4.2 percent × 16 newly eligible 

population) = 1 new population filing only Form I– 

485 

62See Instructions for Application to Register 

Permanent Residence or Adjust Status. Form I–485. 

OMB No. 1615–0023. Expires Sept. 30, 2021. 

Accessed at https://www.uscis.gov/sites/default/ 

files/document/forms/i-485instr.pdf (last visited 

March 22, 2021). 

63Calculation: (15 new population filing Forms I– 

485 and G–28) × (6.70 Time Burden to Complete 

Form I–360) × ($103.81 Compensation Rate of a 

Lawyer) = $10,433. 

64Calculation: (1 new population filing Form I– 

485) × (6.70 Time Burden to Complete Form I–485) 

× ($17.11 Compensation Rate of a Petitioner) = 

$115. 

65See Instructions for Notice of Entry of 

Appearance as Attorney or Accredited 

Representative. Form G–28. OMB No. 1615–0105. 

Expires May 31, 2021. Accessed at https://

www.uscis.gov/sites/default/files/document/forms/ 

g-28instr.pdf (last visited March 22, 2021). 

66Calculation: (15 new population filing Forms I– 

485 and G–28) × (0.83 Time Burden to Complete 

Form G–28) × ($103.81 Compensation Rate of a 

Lawyer) = $1,292. 

67Calculation: (16 Total population) × ($1,140 

Filing Fee Cost per Form I–485) = $18,240. 

68Calculation: ($18,240 Filing Fees) + ($11,840 

Opportunity Cost of Time) = $30,080 Total Cost. 

69See Instructions for Application for Waiver of 

Grounds of Inadmissibility. Form I–601. OMB No. 

1615–0029. Expires July 31, 2021. Accessed at 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-601instr-pc.pdf (last visited March 22, 

2021). 

DHS estimates the opportunity cost of 

time for attorneys or accredited 

representatives using an average hourly 

wage rate $71.59 for lawyers.56

However, average hourly wage rates do 

not account for worker benefits such as 

paid leave, insurance, and retirement. 

DHS accounts for worker benefits when 

estimating the opportunity cost of time 

by calculating a benefits-to-wage 

multiplier using the most recent 

Department of Labor (DOL), Bureau of 

Labor Statistics (BLS) report detailing 

average compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates the 

benefits-to-wage multiplier is 1.45.57

DHS calculates the average total rate of 

compensation as $103.81 58 per hour for 

a lawyer. 

To estimate the opportunity costs of 

time for applicants who are not using an 

attorney or accredited representative, 

USCIS uses the fully-loaded prevailing 

minimum wage rate is $17.11 as 

previously discussed. 

DHS uses the historical Form G–28 

filings of 95.8 percent (Table 8) by 

attorneys or accredited representatives 

accompanying SIJ petitions as a proxy 

for how many may accompany Form I– 

485 petitions. The remaining 4.2 

percent 59 of SIJ petitions are filed 

without a Form G–28. DHS estimates 

that a maximum 15 60 petitions annually 

would be filed with a Form G–28 and 

1 61 petition would be filed by the 

petitioner. 

To estimate the opportunity cost of 

time to file Form I–485, DHS applies the 

estimated public reporting time burden 

(6.70 hours 62) to the newly eligible 

population and compensation rate of 

who may file the form. Therefore, for 

those newly eligible, as shown in Table 

12, DHS estimates the total annual 

opportunity cost of time to petitioners 

completing and filing Form I–485 

petitions will be approximately 

$10,433 63 for lawyers and $115 64 for 

petitioners who submit on their own 

application. For attorneys or accredited 

representatives, an additional 

opportunity cost of time of 0.83 hours 

is applied per Form I–485 application.65

As shown in Table 12, DHS estimates 

the total annual opportunity cost of time 

to petitioners completing and filing 

Form G–28 will be a maximum of 

approximately $1,292 66 for attorneys or 

accredited representatives. The 

opportunity cost of time to the newly 

eligible population to complete and file 

Form I–485 and Form G–28 is $11,840 

(Table 9). DHS is unaware of the 

number of SIJ applicants who would 

also apply for Form I–912, Request for 

Fee Waiver. DHS estimates that the 

maximum filing cost the new 

population to file Form I–485 is 

$18,240 67 if all newly eligible 

petitioners pay the full filing fee. The 

total cost to the newly eligible 

population to complete and file Form I– 

485 and Form G–28, where applicable is 

$30,080.68

TABLE 12—ADDITIONAL OPPORTUNITY COSTS OF TIME TO PETITIONERS FOR FILING FORM I–485 PETITIONS

Petitioner type Affected 

population 

Time burden 

to complete 

Form I–485 

(hours) 

Time burden 

to complete 

Form G–28 

(hours) 

Compensation 

rate 

Total 

opportunity 

cost 

A B C D E = A × (B + C) × D 

Attorney or Accredited Representative .................... 15 6.70 0.83 $103.81 $11,725 

Petitioner .................................................................. 1 6.70 ........................ 17.11 115 

Total .................................................................. 16 ........................ ........................ ........................ 11,840 

Source: USCIS analysis. 

b. Form I–601, Application for Waiver 

of Grounds of Inadmissibility 

Applicants for adjustment of status 

based on SIJ classification who are 

inadmissible under certain grounds may 

seek a waiver of inadmissibility via 

Form I–601, Application for Waiver of 

Grounds of Inadmissibility. The time 

burden for Form I–601 is estimated at 1 

hour and 45 minutes 69 (1.75 hours) per 

application. 

In this final rule, DHS has expanded 

application of the ‘‘simple possession 

exception’’ to certain grounds of 

inadmissibility as a result of a recent 

Board of Immigration Appeals decision 

in Matter of Moradel, which conducted 

a statutory analysis of the scope of the 

simple possession exception under INA 

section 245(h)(2)(B) and concluded that 

it ‘‘applies to all of the provisions listed 

under section 212(a)(2).’’ 28 I&N Dec. 

310, 314–315 (BIA 2021). This change 


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70Calculation: 100 percent ¥ 95.8 percent filing 

with Form G–28 = 4.2 percent only filing Form I– 

360. 71Calculation: (95.8 percent × 4 newly eligible 

population) = 4 new population filing Forms I–601 

and G–28. 72Calculation: (4.2 percent × 4 newly eligible 

population) = 0 new population filing only Form I– 

601. 

73See Instructions for Application for Waiver of 

Grounds of Inadmissibility. Form I–601. OMB No. 

1615–0029. Expires July 31, 2021. Accessed at 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-601instr-pc.pdf (last visited March 22, 

2021). 

74See Instructions for Notice of Entry of 

Appearance as Attorney or Accredited 

Representative. Form G–28. OMB No. 1615–0105. 

Expires May 31, 2021. Accessed at https://

www.uscis.gov/sites/default/files/document/forms/ 

g-28instr.pdf (last visited March 22, 2021). 

75Calculation: (4 Total population) × ($930 Cost 

to File) = $3,720. 

76Calculation: ($3,720 Filing Fees) + ($1,071 

Opportunity Cost of Time) = $4,791 Total Cost. 

will allow SIJs who are inadmissible 

under INA sections 212(a)(2)(A), (B) and 

(C) because of a single offense of simple 

possession of 30 grams or less of 

marijuana to be eligible to apply for a 

waiver of inadmissibility by filing a 

Form I–601, Application for Waiver of 

Grounds of Inadmissibility. To estimate 

the population that will be affected by 

expanding eligibility for those with 

simple possession offenses to file a 

waiver of inadmissibility, DHS analyzed 

historical data on the denials of SIJ 

petitioners who applied for Form I–601. 

DHS does not know the specific reason 

each application was denied. DHS does 

not rule out the possibility that all or 

none of these petitions were denied due 

to simple possession offenses. DHS 

presents an upper bound of 4 petitions 

and a lower bound of zero petitions 

annually who may now be eligible to 

receive an approved Form I–601 shown 

in Table 13. 

TABLE 13—FORM I–601 CASES DENIED AFTER BEING APPROVED FOR A SIJ CLASSIFICATION

[For FY 2016 through FY 2021] 

I–601 Adjudicated fiscal year Approved ** SIJ 

with a denied I–601 

2016 ..................................................................................................................................................................................... 2 

2017 ..................................................................................................................................................................................... 1 

2018 ..................................................................................................................................................................................... 5 

2019 ..................................................................................................................................................................................... 3 

2020 ..................................................................................................................................................................................... 11 

2021 * ................................................................................................................................................................................... 6 

Total .............................................................................................................................................................................. 28 

5-year Annual Average *** ................................................................................................................................................... 4 

Note: The report reflects the most up-to-date data available at the time the system was queried. Database Queried: July 22, 2021, System: 

USCIS Claims 3 database, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), The data reflect the current status of the petitions received in each fiscal year. 

* Data for FY 2021 valid only through 07/22/2021. 

**As of July 22, 2021, SIJ cases still show a Current Approved Status. 

*** 5-year average is based on FY 2016 through FY 2020. 

DHS uses the historical Form G–28 

filings of 95.8 percent of Form I–360 

(Table 8) by attorneys or accredited 

representatives accompanying SIJ 

petitions as a proxy for how many may 

accompany Form I–601 applications. 

The remaining 4.2 percent 70 of Forms I– 

601 would be filed without a Form G– 

28. DHS estimates that a maximum 4 71

Forms I–601 annually would be filed 

with a Form G–28 and 0 72 petition 

would be filed by the petitioner. 

To estimate the opportunity cost of 

time to complete and file Form I–601, 

DHS applies the time burden (1.75 

hours) 73 to the newly eligible 

population and compensation rate of 

who may file. If an attorney or 

accredited representative files on behalf 

of the beneficiary, a Form G–28 would 

be filed with a time burden of 0.83 

hours.74 As shown in Table 14, DHS 

estimates the total annual opportunity 

cost of time to the newly eligible 

population to complete and file Form I– 

601 and Form G–28 is $1,071. The 

estimated filing fees for the new 

population to file Form I–601 is 

$3,720.75 Therefore, the total cost to the 

newly eligible population to complete 

and file Form I–601 and accompanying 

Form G–28 is a $4,791.76


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77See Instructions for Application for Waiver of 

Grounds of Inadmissibility. Form I–601. OMB No. 

1615–0029. Expires July 31, 2021. Accessed at 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-601instr-pc.pdf (last visited March 22, 

2021). 

78See U.S. Department of State, Visa Bulletin for 

September 2021, https://travel.state.gov/content/ 

travel/en/legal/visa-law0/visa-bulletin/2021/visabulletin-for-september-2021.html (listing the final 

action dates for nationals of El Salvador, Guatemala, 

and Honduras as March 15, 2019). 

TABLE 14—ADDITIONAL OPPORTUNITY COSTS OF TIME TO PETITIONERS FOR FILING FORM I–601 APPLICATIONS

Petitioner type Affected 

population 

Time burden 

to complete 

Form I–601 

(hours) 

Time burden 

to complete 

Form G–28 

(hours) 

Compensation 

rate 

Total 

opportunity 

cost 

A B C D E = A × (B + C) × D 

Lawyer ...................................................................... 4 1.75 0.83 $103.81 $1,071 

Total .................................................................. 4 ........................ ........................ ........................ 1,071 

Source: USCIS analysis. 

DHS includes Form I–601 77 as a cost 

of this final rule for the new population 

that may be eligible for approval under 

the no action baseline. 

ii. Qualitative Benefits to Petitioners 

Benefits to petitioners are largely 

qualitative. The eligibility provisions 

offer an increased protection and quality 

of life for petitioners. By allowing 

reunification with non-abusive parents, 

the rule serves the child welfare goal of 

family permanency. By clarifying the 

requirements for qualifying juvenile 

court orders, the regulation will not 

require petitioners to provide evidence 

of the juvenile court’s continuing 

jurisdiction in certain circumstances, 

such as when a child welfare 

permanency goal is reached, such as 

adoption. See new 8 CFR 

204.11(c)(3)(ii)(A). 

DHS has removed marriage of the SIJ 

beneficiary as a basis for automatic 

revocation. Currently, certain 

individuals with an approved SIJ 

petition have to wait as long as two or 

more years to be eligible to file for 

adjustment of status due to the lack of 

immigrant visa availability for nationals 

of certain countries in the EB–4 

category.78 This change is a benefit to 

petitioners, so they can remain eligible 

for lawful permanent residence and do 

not have to put marriage on hold. 

The procedural changes to 8 CFR 

204.11 to provide a timeframe for the 

adjudication process both clarify the 

requirements for petitioning for SIJ 

classification (streamlining consent, 

explaining documentation, outlining the 

interview, setting timeframe) and reduce 

the hurdles to successfully adjusting to 

LPR status once SIJ classification has 

been granted (incorporating expanded 

grounds for waivers of inadmissibility). 

Further, the rule centralizes and makes 

explicit the barriers from contact with 

alleged abusers to which the petitioner 

is entitled. 

DHS has expanded the simple 

possession exception in this rule. 

Currently those who have been 

approved for SIJ classification with a 

simple possession offense and apply for 

a waiver of grounds of inadmissibility 

may have their application denied 

because they are ineligible for the 

waiver. This modification may allow 

them the chance to remain eligible for 

lawful permanent residence. 

DHS acknowledges that SIJ petitioners 

may pursue subsequent actions 

discussed above, such as adjusting 

status and applying for employment 

authorization, which may enable 

additional earnings over their lifetime. 

However, DHS is does not quantify 

those impacts to the affected juvenile 

population in this rule. 

iii. Benefits to Federal Government 

The primary benefits of the rule to 

DHS are greater consistency with 

statutory intent and increased 

efficiency. Externally, congruence of 

statute and regulation lessens ambiguity 

and requires fewer resources to be spent 

on guidance to the regulated 

community. Internally, the regulations 

provide a clearer standard for 

adjudications, including what evidence 

is required for consent and similar basis 

determinations. 

iv. Alternatives Considered 

Where possible, DHS has considered, 

and incorporated alternatives to 

maximize net benefits under the rule. 

For example, DHS considered an 

alternative to the final rule following the 

review of public comment and decided 

to incorporate a clarification on how a 

petitioner can establish that the juvenile 

court made a qualifying determination 

that parental reunification is not viable 

under State law based on a similar basis 

to the statutorily enumerated grounds of 

abuse, neglect, or abandonment. As 

discussed, DHS incorporated options for 

petitioners to submit evidence that 

would not place an additional burden 

on them, such as the juvenile court’s 

determinations or other relevant 

evidence that establishes the juvenile 

court made a judicial determination that 

the legal basis is similar to abuse, 

neglect, or abandonment under State 

law. This alternative was adopted in 

response to public comments requesting 

further clarification to minimize the risk 

of inadvertent ineligibility based on 

differences between States’ laws and 

judicial systems. 

(c) Total Costs of the Final Rule 

In this section, DHS presents the total 

annual costs of this final rule. Table 15 

details the total annual costs of this final 

rule to petitioners will be $34,871 under 

the no action baseline. 

TABLE 15—SUMMARY OF ESTIMATED ANNUAL COSTS TO NEW PETITIONERS IN THIS FINAL RULE—NO ACTION BASELINE

Total costs of filing Total estimated 

annual cost 

Form I–485 .................................................................................................................................................................................... $30,080 

Form I–601 .................................................................................................................................................................................... 4,791 

Total Annual Cost (undiscounted) .......................................................................................................................................... 34,871 


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79Total Cost in 2008 ($1,708) + Total Cost for Inhouse Attorney in 2008 ($235,137) = $236,845 

minimum cost in 2008. 

80Total Cost in 2017 ($33,099) + Total Cost for 

Outsourced Attorney in 2017 ($7,901,271) = 

$7,934,370 maximum cost in 2017. 

81A small business is defined as any 

independently owned and operated business not 

dominant in its field that qualifies as a small 

business per the Small Business Act, 15 U.S.C. 632. 

82See U.S. Department of Labor, BLS, ‘‘Historical 

Consumer Price Index for All Urban Consumers 

(CPI–U): U.S. city average, all items, by month,’’ 

available at https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202112.pdf (last 

visited Jan. 13, 2022). 83Calculation of inflation: (1) Calculate the 

average monthly CPI–U for the reference year (1995) 

and the current year (2021); (2) Subtract reference 

year CPI–U from current year CPI–U; (3) Divide the 

difference of the reference year CPI–U and current 

year CPI–U by the reference year CPI–U; (4) 

Multiply by 100 = [(Average monthly CPI–U for 

2021 ¥ Average monthly CPI–U for 1995)/(Average 

monthly CPI–U for 1995)] * 100 = [(270.970 ¥ 

152.383)/152.383] * 100 = (118.587/152.383) * 100 

= 0.77821673 * 100 = 77.82 percent = 78 percent 

(rounded). Calculation of inflation-adjusted value: 

$100 million in 1995 dollars * 1.78 = $178 million 

in 2021 dollars. 

84The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

sector mandate. See 2 U.S.C. 1502(1), 658(6). 

Table 16 shows the cost over the 10- 

year implementation period of this final 

rule, DHS estimates the total annualized 

cost to be is $34,871 undiscounted in 

the first year, $33,855 discounted at 3- 

percent and $32,590 discounted at 7- 

percent. The total cost estimates are 

based on the no action baseline. The 

total cost to petitioners in the pre 

statutory baseline ranges from a 

minimum of $236,845 79 in FY 2008 to 

a maximum of $7,934,370 80 in FY 2017. 

TABLE 16—TOTAL UNDISCOUNTED AND DISCOUNTED COSTS OF THIS FINAL RULE—NO ACTION BASELINE

Year 

Total estimated costs 

$34,871 

(undiscounted) 

Discounted 

at 3-percent 

Discounted 

at 7-percent 

1 ............................................................................................................................................................................... $33,855 $32,590 

2 ............................................................................................................................................................................... 32,869 30,458 

3 ............................................................................................................................................................................... 31,912 28,465 

4 ............................................................................................................................................................................... 30,982 26,603 

5 ............................................................................................................................................................................... 30,080 24,863 

6 ............................................................................................................................................................................... 29,204 23,236 

7 ............................................................................................................................................................................... 28,353 21,716 

8 ............................................................................................................................................................................... 27,527 20,295 

9 ............................................................................................................................................................................... 26,726 18,968 

10 ............................................................................................................................................................................. 25,947 17,727 

Total .................................................................................................................................................................. 297,457 244,919 

Annualized Cost ....................................................................................................................................................... 34,871 34,871 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121, (Mar. 29, 1996), 

requires Federal agencies to consider 

the potential impact of regulations on 

small businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, or 

governmental jurisdictions with 

populations of less than 50,000.81

The statutory foundation for the SIJ 

classification program, administered by 

USCIS, has changed over time. In this 

final rule, DHS will strengthen 

regulations by codifying its longstanding policies and practices already 

in place having an impact on the 

eligibility of SIJ petitioners and the 

process of filing. This final rule 

primarily seeks to resolve these 

discrepancies by making necessary 

changes. Approval of SIJ petitions 

requires a petitioner to meet a number 

of specified eligibility criteria and 

petition requirements in new 8 CFR 

204.11(b), (c) and (d). 

Therefore, this final rule regulates 

individuals and individuals are not 

defined as a ‘‘small entity’’ by the RFA. 

Based on the evidence presented in this 

RFA and throughout this preamble, DHS 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This final rule is not a major rule as 

defined by section 804 of Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA). This 

final rule likely will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed or final agency 

rule that may directly result in a $100 

million or more expenditure (adjusted 

annually for inflation) in any one year 

by State, local, and tribal governments, 

in the aggregate, or by the private 

sector.82 The inflation-adjusted value of 

$100 million in 1995 is approximately 

$178 million in 2021 based on the 

Consumer Price Index for All Urban 

Consumers (CPI–U).83

This final rule does not contain such 

a mandate as the term is defined under 

UMRA.84 The requirements of title II of 

UMRA, therefore, do not apply, and 

DHS has not prepared a statement under 

UMRA. 


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85See USCIS, ‘‘Special Immigrant Juvenile 

Petitions,’’ Proposed Rule, 76 FR 54978, 54984–95 

(Sep. 6, 2011). 

E. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this final rule is not a major rule, as 

defined by 5 U.S.C. 804, for purposes of 

congressional review of agency 

rulemaking pursuant to the 

Congressional Review Act, Public Law 

104–121, sec. 251, 110 Stat. 868, 873 

(codified at 5 U.S.C. 804). This rule will 

not result in an annual effect on the 

economy of $100 million or more. 

Accordingly, absent exceptional 

circumstances, this rule will have a 

delayed effective date of 30 days. DHS 

has complied with the CRA’s reporting 

requirements and has sent this final rule 

to Congress and to the Comptroller 

General as required by 5 U.S.C. 

801(a)(1). 

F. Executive Order 13132 (Federalism) 

This final rule will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. DHS does not 

expect this rule would impose 

substantial direct compliance costs on 

State and local governments or preempt 

State law. As stated above, neither the 

proposed rule nor this final rule modify 

the extent of State involvement set by 

statute. INA section 101(a)(27)(J), 8 

U.S.C. 1101(a)(27)(J) (‘‘who has been 

declared dependent on a juvenile court 

located in the United States . . . and in 

whose case the Secretary of Homeland 

Security consents to the grant of special 

immigrant juvenile status.’’). State 

courts rightfully grant relief from abuse, 

neglect, abandonment, or some similar 

basis under State law, but they have no 

role in determining or granting 

immigration status within the United 

States. Therefore, in accordance with 

section 6 of E.O. 13132, it is determined 

this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This final rule meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of E.O. 12988. 

H. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This final rule does not have ‘‘tribal 

implications’’ because it does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

I. Family Assessment 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. 

Agencies must assess whether the 

regulatory action: (1) Impacts the 

stability or safety of the family, 

particularly in terms of marital 

commitment; (2) impacts the authority 

of parents in the education, nurture, and 

supervision of their children; (3) helps 

the family perform its functions; (4) 

affects disposable income or poverty of 

families and children; (5) financially 

impacts families, and whether those 

impacts are justified; (6) may be carried 

out by State or local government or by 

the family; and (7) establishes a policy 

concerning the relationship between the 

behavior and personal responsibility of 

youth and the norms of society. If the 

determination is affirmative, then the 

agency must prepare an impact 

assessment to address criteria specified 

in the law. As discussed in the proposed 

rule,85 DHS assessed this action in 

accordance with the criteria specified by 

section 654(c)(1). This final rule will 

continue to enhance family well-being 

by aligning the regulation more closely 

with the statute. Accordingly, the rule 

will continue to enable juvenile 

noncitizens who have been abused, 

neglected, or abandoned and placed in 

State custody by a juvenile court to 

obtain special immigrant classification, 

and continue to enable these juveniles 

to be placed into more stable, 

permanent home environments and 

release them from reliance on their 

abusers. 

J. National Environmental Policy Act 

DHS analyzes actions to determine 

whether the National Environmental 

Policy Act (NEPA) applies to them and, 

if so, what degree of analysis is 

required. DHS Directive 023–01, 

Revision 01, ‘‘Implementation of the 

National Environmental Policy Act,’’ 

and DHS Instruction Manual 023–01– 

001–01, Revision 01, ‘‘Implementation 

of the National Environmental Policy 

Act (NEPA)’’ (Instruction Manual), 

establish the procedures DHS and its 

components use to comply with NEPA 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA codified at 40 CFR 

parts 1500 through 1508. 

The CEQ regulations allow Federal 

agencies to establish, with CEQ review 

and concurrence, categories of actions 

(‘‘categorical exclusions’’) that 

experience has shown do not 

individually or cumulatively have a 

significant effect on the human 

environment and, therefore, do not 

require an Environmental Assessment or 

Environmental Impact Statement. 40 

CFR 1501.4 and 1507.3(e)(2)(ii). The 

DHS categorical exclusions are listed in 

Appendix A of the Instruction Manual. 

For an action to be categorically 

excluded, it must satisfy each of the 

following three conditions: (1) The 

entire action clearly fits within one or 

more of the categorical exclusions; (2) 

the action is not a piece of a larger 

action; and (3) no extraordinary 

circumstances exist that demonstrate, or 

create the potential for, significant 

environmental impacts. Instruction 

Manual, section V.B(2)(a–c). 

This action amends existing 

regulations governing requirements and 

procedures for juveniles seeking SIJ 

classification. Specifically, the 

amendments update regulations 

codified in 8 CFR 204.11, 205.1, and 

245.1 to reflect the statutory text and 

make other programmatic clarifications. 

The amendments codify changes 

required by law, clarify the definitions 

of ‘‘juvenile court’’ and ‘‘judicial 

determination,’’ what constitutes a 

qualifying juvenile court order and 

parental reunification determination, 

DHS’s consent function, and bars to 

adjustment, inadmissibility grounds, 

and waivers for SIJ-based adjustment to 

LPR status. In addition, the amendments 

remove bases for automatic revocation 

that are inconsistent with the statutory 

requirements of the TVPRA 2008 and 

make other technical and procedural 

changes. The amended regulations 

codify and clarify eligibility criteria and 

will have no impact on the overall 

population of the U.S. and will not 

increase the number of immigrants 

allowed into the U.S. 

DHS analyzed the proposed 

amendments and has determined that 

this action clearly fits within categorical 

exclusion A3(a) in Appendix A of the 

Instruction Manual because the 

regulations being promulgated are of a 

strictly administrative or procedural 

nature. DHS has also determined that 

this action clearly fits within categorical 

exclusion A3(d) because it amends 

existing regulations without changing 

their environmental effect. This final 


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rule is not part of a larger action and 

presents no extraordinary circumstances 

creating the potential for significant 

environmental effects. Therefore, this 

final rule is categorically excluded from 

further NEPA review. 

K. Paperwork Reduction Act 

This rule requires that DHS make 

nonsubstantive edits to the instructions 

for Form I–360, Petition for Amerasian, 

Widow(er), or Special Immigrant (OMB 

Control No. 1615–0020), to require 

evidence in support of the ‘‘judicial 

determinations’’ instead of evidence in 

support of the juvenile’s court’s 

‘‘findings,’’ and the instructions for 

Form I–601, Application for Waiver of 

Grounds of Inadmissibility (OMB 

Control No. 1615–0029) to incorporate 

the expanded application of the simple 

possession exception to the grounds of 

inadmissibility under INA section 

212(a)(2)(A), 8 U.S.C. 1182(a)(2)(A) 

(conviction of certain crimes) and INA 

section 212(a)(2)(B), 8 U.S.C. 

1182(a)(2)(B) (multiple criminal 

convictions), in addition to the existing 

application of the exception of the 

simple possession exception at INA 

section 212(a)(2)(C), 8 U.S.C. 

1182(a)(2)(C) (controlled substance 

traffickers). DHS has submitted a 

Paperwork Reduction Act Change 

Worksheet, Form OMB 83–C, and 

amended information collection 

instruments to OMB for review and 

approval in accordance with the PRA. 

VI. List of Subjects and Regulatory 

Amendments 

List of Subjects 

8 CFR Part 204 

Administrative practice and 

procedure, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 205 

Administrative practice and 

procedures, Immigration. 

8 CFR Part 245 

Aliens, Immigration, Reporting and 

recordkeeping requirements. 

Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is amended 

as follows: 

PART 204—IMMIGRANT PETITIONS 

■ 1. The authority citation for part 204 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 

1153, 1154, 1182, 1184, 1186a, 1255, 1324a, 

1641; 8 CFR part 2. 

■ 2. Section 204.11 is revised to read as 

follows: 

§ 204.11 Special immigrant juvenile 

classification. 

(a) Definitions. As used in this 

section, the following definitions apply 

to a request for classification as a special 

immigrant juvenile. 

Judicial determination means a 

conclusion of law made by a juvenile 

court. 

Juvenile court means a court located 

in the United States that has jurisdiction 

under State law to make judicial 

determinations about the dependency 

and/or custody and care of juveniles. 

Petition means the form designated by 

USCIS to request classification as a 

special immigrant juvenile and the act 

of filing the request. 

Petitioner means the alien seeking 

special immigrant juvenile 

classification. 

State means the definition set out in 

section 101(a)(36) of the Act, including 

an Indian tribe, tribal organization, or 

tribal consortium, operating a program 

under a plan approved under 42 U.S.C. 

671. 

United States means the definition set 

out in section 101(a)(38) of the Act. 

(b) Eligibility. A petitioner is eligible 

for classification as a special immigrant 

juvenile under section 203(b)(4) of the 

Act as described at section 101(a)(27)(J) 

of the Act, if they meet all of the 

following requirements: 

(1) Is under 21 years of age at the time 

of filing the petition; 

(2) Is unmarried at the time of filing 

and adjudication; 

(3) Is physically present in the United 

States; 

(4) Is the subject of a juvenile court 

order(s) that meets the requirements 

under paragraph (c) of this section; and 

(5) Obtains consent from the Secretary 

of Homeland Security to classification 

as a special immigrant juvenile. For 

USCIS to consent, the request for SIJ 

classification must be bona fide, which 

requires the petitioner to establish that 

a primary reason the required juvenile 

court determinations were sought was to 

obtain relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law. USCIS may withhold 

consent if evidence materially conflicts 

with the eligibility requirements in 

paragraph (b) of this section such that 

the record reflects that the request for 

SIJ classification was not bona fide. 

USCIS approval of the petition 

constitutes the granting of consent. 

(c) Juvenile court order(s). (1) Courtordered dependency or custody and 

parental reunification determination. 

The juvenile court must have made 

certain judicial determinations related 

to the petitioner’s custody or 

dependency and determined that the 

petitioner cannot reunify with their 

parent(s) due to abuse, neglect, 

abandonment, or a similar basis under 

State law. 

(i) The juvenile court must have made 

at least one of the following judicial 

determinations related to the 

petitioner’s custodial placement or 

dependency in accordance with State 

law governing such determinations: 

(A) Declared the petitioner dependent 

upon the juvenile court; or 

(B) Legally committed to or placed the 

petitioner under the custody of an 

agency or department of a State, or an 

individual or entity appointed by a State 

or juvenile court. 

(ii) The juvenile court must have 

made a judicial determination that 

parental reunification with one or both 

parents is not viable due to abuse, 

abandonment, neglect, or a similar basis 

under State law. The court is not 

required to terminate parental rights to 

determine that parental reunification is 

not viable. 

(2) Best interest determination. (i) A 

determination must be made in judicial 

or administrative proceedings by a court 

or agency recognized by the juvenile 

court and authorized by law to make 

such decisions that it would not be in 

the petitioner’s best interest to be 

returned to the petitioner’s or their 

parent’s country of nationality or last 

habitual residence. 

(ii) Nothing in this part should be 

construed as altering the standards for 

best interest determinations that 

juvenile court judges routinely apply 

under relevant State law. 

(3) Qualifying juvenile court order(s). 

(i) The juvenile court must have 

exercised its authority over the 

petitioner as a juvenile and made the 

requisite judicial determinations in this 

paragraph under applicable State law to 

establish eligibility. 

(ii) The juvenile court order(s) must 

be in effect on the date the petitioner 

files the petition and continue through 

the time of adjudication of the petition, 

except when the juvenile court’s 

jurisdiction over the petitioner 

terminated solely because: 

(A) The petitioner was adopted, 

placed in a permanent guardianship, or 

another child welfare permanency goal 

was reached, other than reunification 

with a parent or parents with whom the 

court previously found that 

reunification was not viable; or 

(B) The petitioner was the subject of 

a qualifying juvenile court order that 

was terminated based on age, provided 

the petitioner was under 21 years of age 

at the time of filing the petition. 


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(d) Petition requirements. A petitioner 

must submit all of the following 

evidence, as applicable to their petition: 

(1) Petition. A petition by or on behalf 

of a juvenile, filed on the form 

prescribed by USCIS in accordance with 

the form instructions. 

(2) Evidence of age. Documentary 

evidence of the petitioner’s age, in the 

form of a valid birth certificate, official 

government-issued identification, or 

other document that in USCIS’ 

discretion establishes the petitioner’s 

age. Under no circumstances is the 

petitioner compelled to submit evidence 

that would conflict with paragraph (e) of 

this section. 

(3) Juvenile court order(s). Juvenile 

court order(s) with the judicial 

determinations required by paragraph 

(c) of this section. Where the best 

interest determination was made in 

administrative proceedings, the 

determination may be provided in a 

separate document issued in those 

proceedings. 

(4) Evidence of a similar basis. When 

the juvenile court determined parental 

reunification was not viable due to a 

basis similar to abuse, neglect, or 

abandonment, the petitioner must 

provide evidence of how the basis is 

legally similar to abuse, neglect, or 

abandonment under State law. Such 

evidence must include: 

(i) The juvenile court’s determination 

as to how the basis is legally similar to 

abuse, neglect, or abandonment under 

State law; or 

(ii) Other evidence that establishes the 

juvenile court made a judicial 

determination that the legal basis is 

similar to abuse, neglect, or 

abandonment under State law. 

(5) Evidentiary requirements for DHS 

consent. For USCIS to consent, the 

juvenile court order(s) and any 

supplemental evidence submitted by the 

petitioner must include the following: 

(i) The factual basis for the requisite 

determinations in paragraph (c) of this 

section; and 

(ii) The relief from parental abuse, 

neglect, abandonment, or a similar basis 

under State law granted or recognized 

by the juvenile court. Such relief may 

include: 

(A) The court-ordered custodial 

placement; or 

(B) The court-ordered dependency on 

the court for the provision of child 

welfare services and/or other courtordered or court-recognized protective 

or remedial relief, including recognition 

of the petitioner’s placement in the 

custody of the Department of Health and 

Human Services, Office of Refugee 

Resettlement. 

(6) U.S. Department of Health and 

Human Services (HHS) consent. The 

petitioner must provide documentation 

of specific consent from HHS with the 

petition when: 

(i) The petitioner is, or was 

previously, in the custody of HHS; and 

(ii) While in the custody of HHS, the 

petitioner obtained a juvenile court 

order that altered the petitioner’s HHS 

custody or placement status. 

(e) No contact. During the petition or 

interview process, USCIS will take no 

action that requires a petitioner to 

contact the person(s) who allegedly 

battered, abused, neglected, or 

abandoned the petitioner (or the family 

member of such person(s)). 

(f) Interview. USCIS may interview a 

petitioner for special immigrant juvenile 

classification in accordance with 8 CFR 

103.2(b). If an interview is conducted, 

the petitioner may be accompanied by a 

trusted adult at the interview. USCIS 

may limit the number of persons present 

at the interview, except that the 

petitioner’s attorney or accredited 

representative of record may be present. 

(g) Time for adjudication. (1) In 

general, USCIS will make a decision on 

a petition for classification as a special 

immigrant juvenile within 180 days of 

receipt of a properly filed petition. The 

180 days does not begin until USCIS has 

received all of the required evidence in 

paragraph (d), and the time period will 

be reset or suspended as described in 8 

CFR 103.2(b)(10)(i). 

(2) When a petition for special 

immigrant juvenile classification and an 

application for adjustment of status to 

lawful permanent resident are pending 

at the same time, a request for evidence 

relating to the separate application for 

adjustment of status will not stop or 

suspend the 180-day period for USCIS 

to decide on the petition for SIJ 

classification. 

(h) Decision. USCIS will notify the 

petitioner of the decision made on the 

petition, and, if the petition is denied, 

of the reasons for the denial, pursuant 

to 8 CFR 103.2(b) and 103.3. If the 

petition is denied, USCIS will provide 

notice of the petitioner’s right to appeal 

the decision, pursuant to 8 CFR 103.3. 

(i) No parental immigration rights 

based on special immigrant juvenile 

classification. The natural or prior 

adoptive parent(s) of a petitioner 

granted special immigrant juvenile 

classification will not be accorded any 

right, privilege, or status under the Act 

by virtue of their parentage. This 

prohibition applies to all of the 

petitioner’s natural and prior adoptive 

parent(s). 

(j) Revocation. (1) Automatic 

revocation. USCIS will issue a notice to 

the beneficiary of an approved petition 

for special immigrant juvenile 

classification of an automatic revocation 

under this paragraph as provided in 8 

CFR 205.1. The approval of a petition 

for classification as a special immigrant 

juvenile made under this section is 

revoked as of the date of approval if any 

one of the following circumstances 

occurs before the decision on the 

beneficiary’s application for adjustment 

of status to lawful permanent resident 

becomes final: 

(i) Reunification of the beneficiary 

with one or both parents by virtue of a 

juvenile court order, where a juvenile 

court previously deemed reunification 

with that parent, or both parents, not 

viable due to abuse, neglect, 

abandonment, or a similar basis under 

State law; or 

(ii) Administrative or judicial 

proceedings determine that it is in the 

beneficiary’s best interest to be returned 

to the country of nationality or last 

habitual residence of the beneficiary or 

of their parent(s). 

(2) Revocation on notice. USCIS may 

revoke an approved petition for 

classification as a special immigrant 

juvenile for good and sufficient cause as 

provided in 8 CFR 205.2. 

PART 205—REVOCATION OF 

APPROVAL OF PETITIONS 

■ 3. The authority citation for part 205 

is revised to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 

1153, 1154, 1155, 1182, 1186a, and 1324a. 

■ 4. Amend § 205.1 by revising 

paragraph (a)(3)(iv) to read as follows: 

§ 205.1 Automatic revocation. 

(a) * * * 

(3) * * * 

(iv) Special immigrant juvenile 

petitions. An approved petition for 

classification as a special immigrant 

juvenile will be revoked as provided in 

8 CFR 204.11(j)(1). 

* * * * * 

PART 245—ADJUSTMENT OF STATUS 

TO THAT OF PERSON ADMITTED FOR 

PERMANENT RESIDENCE 

■ 5. The authority citation for part 245 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1182, 

1255; Pub. L. 105–100, section 202, 111 Stat. 

2160, 2193; Pub. L. 105–277, section 902, 112 

Stat. 2681; Pub. L. 110–229, tit. VII, 122 Stat. 

754; 8 CFR part 2. 

■ 6. Amend § 245.1 by revising 

paragraph (e)(3) to read as follows: 

§ 245.1 Eligibility. 

* * * * * 


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Federal Register / Vol. 87, No. 45 / Tuesday, March 8, 2022 / Rules and Regulations 13113 

(e) * * * 

(3) Special immigrant juveniles. (i) 

Eligibility for adjustment of status. For 

the limited purpose of meeting one of 

the eligibility requirements for 

adjustment of status under section 

245(a) of the Act, which requires that an 

individual be inspected and admitted or 

paroled, an applicant classified as a 

special immigrant juvenile under 

section 101(a)(27)(J) of the Act will be 

deemed to have been paroled into the 

United States as provided in § 245.1(a) 

and section 245(h) of the Act. 

(ii) Bars to adjustment. An applicant 

classified as a special immigrant 

juvenile is subject only to the 

adjustment bar described in section 

245(c)(6) of the Act. Therefore, an 

applicant classified as a special 

immigrant juvenile is barred from 

adjustment if deportable due to 

engagement in terrorist activity or 

association with terrorist organizations 

(section 237(a)(4)(B) of the Act). There 

is no waiver of or exemption to this 

adjustment bar if it applies. 

(iii) Inadmissibility provisions that do 

not apply. The following inadmissibility 

provisions of section 212(a) of the Act 

do not apply to an applicant classified 

as a special immigrant juvenile and do 

not render the applicant ineligible for 

the benefit: 

(A) Public charge (section 212(a)(4) of 

the Act); 

(B) Labor certification (section 

212(a)(5)(A) of the Act); 

(C) Aliens present without admission 

or parole (section 212(a)(6)(A) of the 

Act); 

(D) Misrepresentation (section 

212(a)(6)(C) of the Act); 

(E) Stowaways (section 212(a)(6)(D) of 

the Act); 

(F) Documentation requirements for 

immigrants (section 212(a)(7)(A) of the 

Act); 

(G) Aliens unlawfully present (section 

212(a)(9)(B) of the Act); 

(iv) Inadmissibility provisions that do 

apply. Except as provided for in 

paragraph (e)(3)(iii) of this section, all 

inadmissibility provisions in section 

212(a) of the Act apply to an applicant 

classified as a special immigrant 

juvenile. 

(v) Waivers. (A) Pursuant to section 

245(h)(2)(B) of the Act, USCIS may grant 

a waiver for humanitarian purposes, to 

assure family unity, or in the public 

interest for any applicable provision of 

section 212(a) of the Act to an applicant 

seeking to adjust status based upon their 

classification as a special immigrant 

juvenile, except for the following 

provisions: 

(1) Conviction of certain crimes 

(section 212(a)(2)(A) of the Act) (except 

for a single offense of simple possession 

of 30 grams or less of marijuana); 

(2) Multiple criminal convictions 

(section 212(a)(2)(B) of the Act) (except 

for a single offense of simple possession 

of 30 grams or less of marijuana); 

(3) Controlled substance traffickers 

(section 212(a)(2)(C) of the Act) (except 

for a single offense of simple possession 

of 30 grams or less of marijuana); 

(4) Security and related grounds 

(section 212(a)(3)(A) of the Act); 

(5) Terrorist activities (section 

212(a)(3)(B) of the Act); 

(6) Foreign policy (section 

212(a)(3)(C) of the Act); or 

(7) Participants in Nazi persecution, 

genocide, or the commission of any act 

of torture or extrajudicial killing 

(section 212(a)(3)(E) of the Act). 

(B) The relationship between an 

applicant classified as a special 

immigrant juvenile and the applicant’s 

natural or prior adoptive parents cannot 

be considered a factor in issuing a 

waiver based on family unity under 

paragraph (v) of this section. 

(vi) No parental immigration rights 

based on special immigrant juvenile 

classification. The natural or prior 

adoptive parent(s) of an applicant 

classified as a special immigrant 

juvenile will not be accorded any right, 

privilege, or status under the Act by 

virtue of their parentage. This 

prohibition applies to all of the 

applicant’s natural and prior adoptive 

parent(s) and remains in effect even 

after the special immigrant juvenile 

becomes a lawful permanent resident or 

a United States citizen. 

(vii) No contact. During the 

application or interview process, USCIS 

will take no action that requires an 

applicant classified as a special 

immigrant juvenile to contact the person 

who allegedly battered, abused, 

neglected, or abandoned the applicant 

(or the family member of such 

person(s)). 

* * * * * 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2022–04698 Filed 3–7–22; 8:45 am] 

BILLING CODE 9111–97–P 


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