In 1990, Congress created a humanitarian protection that allows abused, abandoned, and neglected young immigrants to receive green cards and launch new, safe lives in the U.S.—in theory. In reality, impacted young people face a yearslong wait before they can get their green cards, during which they're at risk of deportation and unable to make long-term plans.
The protection is called Special Immigrant Juvenile Status (SIJS), and thanks to a strange technicality in the law, a staggering number of young people are stuck in limbo, harmed by the very process that Congress created to protect them.
When Congress established SIJS, it put that status under the employment-based visa umbrella. "There's really no legislative history that we could find that explains why humanitarian protection for children is placed in the employment-based visa system," says Rachel Davidson, director of the End SIJS Backlog Coalition at the National Immigration Project. That classification means SIJS youth are subject to per-country and per-year caps. Once a year's green cards are delegated, impacted young immigrants who don't receive one simply have to wait. As more qualify for the status and apply each year, the backlog grows.
A report released last week by Davidson's End SIJS Backlog Coalition and Tulane University's Immigrant Rights Clinic found that the number of children stuck in the backlog has more than doubled in just two years. Over 100,000 young immigrants are now trapped, facing a wait time of five years or more before they can get a green card.
"Until recently, the size of the SIJS backlog was not publicly available," according to the report. Milbank LLP filed a Freedom of Information Act lawsuit against U.S. Citizenship and Immigration Services (USCIS) to obtain the data this report is based on. "Milbank has represented SIJS clients for decades so we have seen first-hand how the backlog has negatively impacted our [clients'] lives," says Anthony Perez Cassino, pro bono counsel at Milbank. "Kids who were abandoned and neglected are now in limbo and put into unstable environments."
There are three steps before an immigrant youth receives a green card through the SIJS process, explains Rachel Prandini, a staff attorney for the Immigrant Legal Resource Center. A state court judge must first determine "that a child needs court intervention, whether that's placement in the child welfare system or a custody order for the child; that the child can't reunify with one or both parents because of abuse, neglect, or abandonment; and that it's not in the child's best interest to return to their country of origin," she says.
Next, the child applies for SIJS with USCIS. (The new report notes that USCIS currently takes 263 days on average to approve an SIJS petition—a violation of the 180-day deadline required by law.) "If that's approved, then that creates eligibility to apply for their green card," says Prandini. "But that's where you need a visa to be available before you can apply for a green card." Young immigrants could historically apply for SIJS and a green card at the same time or very close together. Now, however, they have to wait years between those two steps.
"Right now, the way the system works, we know who is eligible to get out of the backlog retrospectively," says Laila Hlass, a law professor at Tulane University who co-authored the new SIJS report with Davidson, Tulane law student Katia Leiva, and Immigrant Justice Corps fellow Gabriela Cruz. "Prospectively, we think it's only going to get worse and worse and worse."
It's very difficult for young immigrants to live in the U.S. solely with SIJS. "The government does not believe that it provides lawful immigration status," Prandini explains. "They view it as just creating eligibility to apply for a green card. So on its own, it doesn't provide protection from removal and it doesn't come with work authorization."
A lack of work authorization means that impacted young people "are going to have to be in the unregulated workplace," says Hlass. "We heard from young people who had unsafe jobs, who were being exposed to chemicals without safety gear, who were just working any job that they could get."
Many SIJS youth deal with severe financial and emotional distress as a result of the backlog. "I don't think about the future anymore because I don't want to have false hope," said an impacted young person who was interviewed for the SIJS report. One youth from Georgia, who faced violence inside and outside the home, noted that he hoped to "start healing the other things that have been messed up" after he gets his green card. "But the longer it takes," he continued, "the harder it is going to be for me to fix everything."
In early 2022, the Biden administration announced a deferred action policy, which granted some SIJS youth the ability to apply for work authorization. It also deferred removal proceedings. Advocates say that the policy was a welcome bit of relief but note that it's imperfect. It's a case-by-case measure, and it isn't permanent. Any lasting solution will need to come from Congress.
This June, Reps. Zoe Lofgren (D–Calif.), Jimmy Gomez (D–Calif.), and Adriano Espaillat (D–N.Y.) introduced the Protect Vulnerable Immigrant Youth Act. The targeted bill would exempt SIJS kids from the annual numerical limits on employment-based visas.
"With reports that the youth backlog has more than doubled in just two years, it is more important than ever for Congress to stop ignoring immigrant children and, instead, pass sensible bills like the Protect Vulnerable Immigrant Youth Act," Lofgren, a senior member of the House immigration subcommittee and a former immigration lawyer, tells Reason. "Placing vulnerable immigrant youth in employment-based visa backlogs and subjecting them to arbitrary per-country caps makes no sense, and Congress can correct that."
Until then, Davidson notes that there are several ways the Biden administration can offer relief to impacted young people. It could ensure they get deferred action in a timely manner and rescind removal orders for SIJS youth, among other things. "When they're allowed to be full members of this society, they're going to be not only doing well for themselves," Hlass notes, "but they're supporting family members, they're part of communities that as a whole can begin to prosper more."
"In the grand scheme of things of immigration reform, it's kind of a small piece of the puzzle," says Davidson. "But each of these young people really is an entire world."
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