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.


Automatic Revocation. GovRegs.  

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

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


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


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