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CURRENT LAW FOR
UNDOCUMENTED CHILDREN WHO ARE BEING ADOPTED OR EMANCIPATING OUT OF
THE SYSTEM
If an
undocumented child becomes a dependent of the court because of abuse
or neglect and parental rights are terminated, that child is
eligible for Special Immigrant Juvenile Status (SIJS).
The
catch… The child can only
obtain legal status while the child is a dependent of the court.
Unfortunately, there are no current laws to require the assignment
of an Immigration Specialist to ensure that this will happen.
PROCEDURES FOR
ADOPTED CHILDREN UNDER CURRENT LAW
If you adopt a child and
then find out he/she has not entered this country legally:
- The child
must remain in your legal, physical custody for two years, at
which point you can request an interview with the American
Consulate in the child’s home country.
- It takes one
to two years to get the interview.
- At the time
of the interview, you must take the child back to the home country
and ask the consulate for permission to bring the child back into
the United States.
- So far, this
process takes a minimum of three years with no guarantee that the
child will be given legal status. If immigration counsel has not
been assigned and the adoptive parents are not aware of their
child’s legal status, that child is vulnerable to deportation at
any time.
- If a child is
adopted and turns 18 prior to the interview, he/she has to go back
to his/her home country and wait for the interview. Some of these
children have been in the United States since they were infants or
small children and don’t even speak their home language.
- If an
18-year-old does not return to his/her home country and turns 18½
before the interview, when the child does go to the interview, the
child will be barred from re-entering the United States for three
years.
- If the child
turns 19, there is a ten-year bar from returning to the United
States.
PROCEDURES FOR
EMANCIPATED CHILDREN UNDER
CURRENT LAW
- If a child
emancipates out of the foster care system at the age of 18:
- The child has
six months to return to his/her home country to apply with the
American consulate to re-enter the United States legally.
- Once the
application process has started, it becomes very costly for the
child and can take years to complete.
- If an
18-year-old does not return to his/her home country and turns 18½
before the interview, when the child does go to the interview, the
child will be barred from re-entering the United States for three
years.
- If the child
turns 19, there is a ten-year bar from returning to the United
States.
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Click here for Federal
Legislation
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LEGISLATION
State legislation was introduced by
Assemblyman Nation to require that a dependent of the court who is
not a lawful permanent resident be assigned an immigration
specialist to gain legal status prior to emancipation or
adoption.
This legislation failed at the hands
of Governor Schwarzenegger.
 View legislation and the Governor’s veto
message.
(see page 6)
Emancipated Children
To resolve the issues
these children face after emancipation, Assemblyman Nation
introduced a resolution, AJR 41, on February 2, 2006 to urge
Congress to address this problem at a federal level.
Adopted Children
Federal legislation has
been drafted by Congresswoman Woolsey that would give a child who is
a dependent of a juvenile court legal status upon the finalization
of adoption of a U.S. citizen. drafted an amendment to the
Immigration and Nationality Act to help children and their adoptive
parents.
View federal legislation. (see
page 8) |
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