Immigration law, like most areas of the law, has certain hard-and-fast deadlines. For example, the age cut-off for obtaining Special Immigrant Juvenile (SIJ) status, which is one potential basis for obtaining a green card, is the applicant’s 21st birthday. Sometimes, an applicant may be pushed to the brink of that deadline through forces outside their control. For those applicants who find themselves facing unavoidable last-minute applications, recent court decisions may offer some good news. As with any sort of immigration filing, a skilled Maryland immigration lawyer can provide invaluable assistance as you pursue an SIJ application… whether or not you’re up against the deadline.
To receive SIJ status, a juvenile must file USCIS Form I-360 and establish that he “has been abused, neglected or abandoned by one or both parents making reunification with those parents impossible” and that return to his native country is not in his best interest.
Generally, the basis for meeting the first of these required criteria is a declaration of dependency by a state court judge. This creates a major challenge for some SIJ applicants: they must meet a strictly enforced deadline (the date of their 21st birthday) but they also are at the mercy of factors outside their control; namely, the speed at which the state court adjudicates its dependency case docket.
For some, these elements leave them pushed right to the edge of the deadline. Compounding the problem, the USCIS makes near-deadline filings difficult, accepting only those applications printed out on paper and submitted by mail or courier to the USCIS’s Chicago office.
Fortunately, two federal court rulings, one of which occurred earlier this month in the District of Maryland, have called into question the permissibility of this process.
In the Maryland case, José was a man who had lived in the United States since a week before his 18th birthday. José came from a problematic family situation and, on that basis, sought the appointment of a guardian. The court in Prince George’s County issued an order that made all the legal findings necessary for José to obtain SIJ status. Unfortunately, the court entered that order two days before José’s 21st birthday.
José’s attorney sent the completed Form I-360 that same day via overnight mail. The USCIS should have received the application on Friday, June 3, 2016, the eve of José’s 21st birthday. Apparently, the agency did not, as it ultimately denied José’s application on the basis that he was 21 when the agency “received” the form.
Attacking the Process as ‘Arbitrary’ and ‘Capricious’
José challenged that determination in court and succeeded in advancing past the dismissal phase. The court, in rejecting the government’s motion to dismiss, allowed José to attack not his individual denial but the process itself. José’s claim, at its basis, asserted that the USCIS’s rules requiring applicants to mail their forms made it “impossible for certain eligible applicants to timely apply.”
A few weeks before that ruling, a federal court in New York made a similar decision in favor of SIJ applicants. That court decided that the USCIS’s existing SIJ application process was potentially arbitrary and capricious in several ways, including failure to extend the time when applicants’ birthdays fell on federal holidays, requiring that applicants apply via either mail or overnight courier, and requiring that all applicants mail their applications to the USCIS’s Chicago office.
These successes may open critical new doors for SIJ applicants. New options such as applying electronically could represent vitally important options for certain immigrants seeking SIJ status.
If you’re seeking SIJ status or applying for a green card, don’t go it alone. The USCIS and its forms have many requirements and errors can cost you precious time or even cost you approval of your application. The experienced Maryland green card attorneys at Anthony A. Fatemi, LLC are here to help, offering clients personalized attention and in-depth knowledge of all immigration laws and procedures. To learn more, contact us at 301-519-2801 or via our online form.