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:

Rená 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)

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 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).

The following table summarizes the statutory amendments implemented in this final rule:

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:

○ Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994);

○ 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);

○ Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); and

○ 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 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 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 Class-Wide 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 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).

(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 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. 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 SIJ-based 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. 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 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 employment-based 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 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 SIJ-based 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.

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. 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 second-guessed by USCIS SIJ adjudicators and that DHS improperly encourages a re-examination 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 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 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.

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 non-citizen 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 age-out 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 long-standing regulatory requirements, consistent with the definition of “child” in the INA, that a petitioner be 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 non-offending 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 court-ordered dependency on the court for the provision of child welfare services and/or other court-ordered or court-recognized 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 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 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.”

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 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 long-standing 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 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 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 long-term 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. 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 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 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, 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 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 re-adjudicate 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 re-adjudicate 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 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 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 court-ordered 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.

(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/​volume-6-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 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 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, 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. 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 Perez-Olano 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.

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 Perez-Olano 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 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 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 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.

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 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 non-abusive 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 parent-child 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:

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.

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 non-maltreating 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 SIJ-based 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 SIJ-based 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 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 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. 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 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. 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 in FY 2008 to a maximum of $7,934,370 in FY 2017. Table 4 provides a more detailed summary of the final rule provisions and their economic impacts under the no action baseline.

In addition to the impacts summarized above, and as required by the OMB Circular A-4, Table 5 presents the prepared accounting statement showing the costs and benefits associated with this regulation. as required by OMB Circular A-4.

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. 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 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 court-ordered 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 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 court-ordered 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. 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 long-term foster care”. The TVPRA 2008 removed the requirement that petitioners be deemed eligible for long-term foster care, reflecting a shift in the child welfare system away from long-term 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 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). 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.

(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.

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 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. 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. 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 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.” 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-to-wage 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. The fully loaded per hour wage rate for someone earning the prevailing minimum wage rate is $17.11. Therefore, DHS estimates that the opportunity cost for each petitioner is $35.59 per response for the SIJ petition.

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 of Form I-360 petitions are filed with a Form G-28. The remaining 4.2 percent of petitions are filed without a Form G-28.

DHS estimates the opportunity cost of time for attorneys or accredited representatives using an average hourly wage rate $71.59 for lawyers. 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. DHS calculates the average total rate of compensation as $103.81 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. 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

$178.98 to approximate an hourly billing rate for an outsourced lawyer. Therefore, DHS estimates that the opportunity cost for each petitioner is $372.28 per response for the out sourced attorney.

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 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.

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 in FY 2008 to a maximum of $7,934,370 in FY 2017.

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 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 (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. 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 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. 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. 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. 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.

(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 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.

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 of Form I-360 petitions are filed with a Form G-28. The remaining 4.2 percent of petitions are filed without a Form G-28.

DHS estimates the opportunity cost of time for attorneys or accredited representatives using an average hourly wage rate $71.59 for lawyers. 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. DHS calculates the average total rate of compensation as $103.81 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 of SIJ petitions are filed without a Form G-28. DHS estimates that a maximum 15 petitions annually would be filed with a Form G-28 and 1 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 ) 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 for lawyers and $115 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. 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 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 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.

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 (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 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.

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 of Forms I-601 would be filed without a Form G-28. DHS estimates that a maximum 4 Forms I-601 annually would be filed with a Form G-28 and 0 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) 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. 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. 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.

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. 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 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 in FY 2008 to a maximum of $7,934,370 ⁸⁰ in FY 2017.

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.

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 long-standing 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 foreign-based 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. 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).

This final rule does not contain such a mandate as the term is defined under UMRA. The requirements of title II of UMRA, therefore, do not apply, and DHS has not prepared a statement under UMRA.

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, 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 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:

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:

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: