Friday, April 9, 2021

Adopting an Undocumented Child


SIJS Application Pending

    Special Immigrant Juvenile Status (SIJS) allows immigrant children in the state juvenile court system to obtain lawful permanent immigration status. There are specific requirements for a child to qualify for SIJS. The child must be under 21, unmarried, and be declared a dependent in juvenile court or an entity must be appointed as the child’s legal custodian. Although, if the state court loses jurisdiction over the child at 18, the deadline would be 18, not 21. According to federal law, an approved SIJS petition will not be revoked due to adoption or placement in a guardianship of the SIJS beneficiary. Moreover, the USCIS policy manual states that while it is normally required to have custody of the juvenile court for approval of the petition, there is an exception to this rule when the court loses custody due to the juvenile either being adopted or placed in a guardianship.

    Having an approved SIJS petition does not grant any status to the child, temporary or permanent. When a visa number becomes available to the child, the pending SIJS petition will allow them to apply for adjustment of status. Most children may apply to adjust status concurrently with their SIJS petition. The exception is children who are citizens of El Salvador, Guatemala, Honduras, and sometimes Mexico. For SIJ children the wait can be years. Additionally, an approved I-360 SIJS petition does not permit the child to receive a SSN, and also does not provide authorization for employment. Usually, the application for employment authorization which gives them a lawful permanent resident card and social security card are filed at the same time as the SIJS petition.

SIJ Status and Medicaid

    The Children’s Health Insurance Program Reauthorization Act (CHIPRA) gives states the ability to provide medical coverage to children and pregnant women who are residing legally in the United States. Under this law, a child who has a pending application for SIJS is considered a lawfully residing alien. Provided that the child (under the age of 19) is in the United States legally and their status has not expired, they would be eligible for Medicaid. Medicaid does not require that a child with a status of SIJ apply for a SSN or provide proof of application to be eligible for coverage, so long as their status remains as SIJ. However, if their status changes to legal permanent resident (LPR), they would then be required to provide proof of SSN in order to remain eligible. Furthermore, if the child is still legally a non-immigrant by the age of 19, they lose their status as a qualified alien and would have to be re-evaluated as an adult immigrant. According to the Virginia Medical Assistance Eligibility manual, “Lawfully residing children under age 19 and pregnant women meet Medicaid and FAMIS/FAMIS MOMS alien requirements regardless of their arrival date or length of time in the US.”.

Family-Based Petition Process

    To be considered to be an adopted child under this alternative process, the child must have been under the age of 16 by the time adoption was finalized, and the parent(s) have had legal and physical custody of the child for at least 2 years. Both United States citizens and Lawful Permanent Residents are able to file a petition under this process. Given that their child meets the requirements to be considered an adopted child, they are able to file form I-130, Petition for Alien Relative with USCIS. Approval of the petition does not grant the child any immigration status. Once the petition is approved, the child may then apply for Legal Permanent Resident status which results in a lawful permanent resident card. There is an important caveat to the availability of this pathway to lawful status for children who are citizens of Hague Adoption Convention countries. If the adoptive parent is a US citizen, and the child is a citizen of another Hague Adoption Convention country, the state court does not have jurisdiction to finalize the adoption without compliance with strict notice to the Central Authority. The requirements for notice can be found here. The family law attorney must consult with an immigration attorney before the adoption is finalized.

A full list of Hague Adoption Convention countries can be found here.


Sources:

Automatic Revocation. GovRegs.  

Chapter 2 - Eligibility Requirements. U.S. Citizenship and Immigration Services.  

Family-Based Petition Process. U.S. Citizenship and Immigration Services. 


Links:




Drafted by Alyssa Howes, intern at the Law Offices of Karen S. Law, PLC.

Disclaimer:

    This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this blog are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2021.

Monday, January 4, 2021

COVID-19 and Adoption

     The COVID-19 pandemic has changed many aspects of the adoption process for both intercountry and domestic adoptions. This has been a challenging situation for prospective adoptive parents and adoption agencies to navigate. Many parents have had their plans of adopting a child put on hold this year because of the delays in the process. Prospective adoptive parents, social workers, adoption agencies, and adoption attorneys have all had to adapt to the situation in different ways. At this point in time, it is evident that the pandemic has already had significant effects on the adoption process. However, the long term affects that COVID-19 will have on adoption are less certain.

    This situation is especially complicated for parents who were planning on completing adoptions abroad. International flights are restricted, and some countries have temporarily closed their borders to non-citizens. Due to the travel restrictions, some parents have not yet been able to meet their adopted child or complete the Court process overseas. Embassies which issue the visa after the adoption process are closed except for emergency type services. The Department of State has worked to prioritize the processing of adoption visas with many Embassies. However, the Embassies in some countries are still at a standstill in processing adoption visas.

    As a result, those children are having to stay in foster homes or orphanages for much longer than planned, with no certain end date (Dodge, 2020). Unfortunately, there is currently no data available to determine how these children and their caregivers are faring during the pandemic (Fronek & Rotabi, 2020). The negative effects of institutionalization have been well documented. According to one study, children reared in institutions were more likely to develop psychiatric disorders such as attention-deficit/hyperactivity disorder, anxiety, and depression compared to other children (McLaughlin et al., 2010). We have learned that children’s brains are irreversibly damaged the longer that they remain in institutional care. Attachment is very important for healthy child development, and institutionalized children often have problems forming attachments. The absence of a primary attachment figure early in life is likely what leads to the harmful mental health effects in institutionalized children (McLaughlin et al., 2012). One expected consequence will be that the adopted children will have greater needs for services upon their arrival in their homes to reverse this long-term damage.

    On the domestic side, certain aspects of the adoption process have had to change in order to adapt during the pandemic. Adoption agencies have had to become more flexible during the pandemic and find alternative ways of meeting with birth parents doing things in order to keep everyone safe. Home study and post-placement visits may occur over video call rather than in person due to COVID-19. Video calling is not ideal because the evaluation may not be as comprehensive as in person visit, but in some cases, it is the only available option.

    Birth mothers and prospective adoptive parents have also had to change the way they connect because they are unable to meet each other in person. Instead, they have had to meet and build their relationship via video calls, phone calls, and texting (Chertoff, 2020). Hospitals have new policies due to COVID-19, and many adoptive parents have not been able to be present for the birth of their adopted child; instead they may be on video call with the birth mother while she is at the hospital (Chertoff, 2020). Communicating only through video calls and phones may not be the ideal option during the adoption process, but we are fortunate to have this technology available as an alternative option.

    On the foster care side of adoptions, one would expect to find more families in crisis and a corresponding rise in children entering the foster care system due to abandonment, abuse or neglect. However, many times those children return to the homes of their birth families or are placed with other relatives. We would not expect to see those cases end in adoption for generally about two years. The other factor is the decline in reporting of abandonment, abuse and neglect because children are not physically attending schools in many locales. Child welfare agencies are responsible for protecting children from maltreatment, but they have little oversight and some of their methods are now ineffective due to the pandemic (Welch & Haskins, 2020).

    We do not yet have statistics on whether COVID-19 has negatively or positively changed the number of domestic adoptions. We can expect the number of intercountry adoptions to drop significantly during the next fiscal year. But, more important than numbers, we are greatly concerned for the welfare of children in need of permanent loving families who will now experience delays due to the pandemic.


Sources:

Chertoff, J. (2020, June 11). How COVID-19 Has Impacted the Adoption Community. Retrieved from https://www.parents.com/parenting/adoption/how-covid-19-has-impacted-the-adoption-community/

Dodge, D. (2020, April 01). How Coronavirus Is Affecting Surrogacy, Foster Care and Adoption. Retrieved from https://www.nytimes.com/2020/04/01/parenting/coronavirus-adoption-surrogacy-foster-care.html

Fronek, P., & Rotabi, K. S. (2020). The impact of the COVID-19 pandemic on intercountry adoption and international commercial surrogacy. International Social Work, 63(5), 665-670. Retrieved from https://journals.sagepub.com/doi/full/10.1177/0020872820940008

McLaughlin, K. A., Fox, N. A., Zeanah, C. H., Sheridan, M. A., Marshall, P. J., & Nelson, C. A. (2010). Delayed maturation in brain electrical activity partially explains the association between early environmental deprivation and symptoms of attention-deficit/hyperactivity disorder. Biological Psychiatry, 68(4), 329-336.

McLaughlin, K.A., Zeanah. C.H., Fox, N.A., & Nelson, C.A. (2012). Attachment security as a mechanism linking foster care placement to improved mental health outcomes in previously institutionalized children. Journal of Child Psychology & Psychiatry, 53(1), 46-55.

Welch, M., & Haskins, R. (2020, April 30). What COVID-19 means for America's child welfare system. Retrieved from https://www.brookings.edu/research/what-covid-19-means-for-americas-child-welfare-system/


Drafted by Alyssa Howes, intern at the Law Offices of Karen S. Law, PLC.

Disclaimer:

    This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this blog are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2021.