[Federal Register Volume 87, Number 45 (Tuesday, March 8, 2022)]
[Rules and Regulations]
[Pages 13066-13113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04698]



[[Page 13065]]

Vol. 87

Tuesday,

No. 45

March 8, 2022

Part III





Department of Homeland Security





-----------------------------------------------------------------------





8 CFR Parts 204, 205 and 245





Special Immigrant Juvenile Petitions; Final Rule

  Federal Register / Vol. 87 , No. 45 / Tuesday, March 8, 2022 / Rules 
and Regulations  

[[Page 13066]]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 204, 205, and 245

[CIS No. 2474-09; DHS Docket No. USCIS-2009-0004]
RIN 1615-AB81


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: Ren[aacute] 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)

[[Page 13067]]

    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 \1\ 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).
---------------------------------------------------------------------------

    \1\ The Immigration Act of 1990, Public Law 101-649, 104 Stat. 
4978 (Nov. 29, 1990), added the SIJ classification. Congress has 
amended the eligibility criteria for SIJ classification several 
times, as noted in Table 1.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \2\ The provisions to adjust status under INA section 245(h) 
were added by the Miscellaneous and Technical Immigration and 
Naturalization Amendments of 1991, Public Law 102-232, 105 Stat. 
1733 (Dec. 12, 1991).
---------------------------------------------------------------------------

    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).\3\
---------------------------------------------------------------------------

    \3\ The protection at INA section 287(h) for a petitioner 
seeking SIJ classification from being compelled to contact an 
alleged abuser, or the abuser's family member, was added by the 
Violence Against Women and Department of Justice Reauthorization Act 
of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5, 
2006).
---------------------------------------------------------------------------

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

                         Table 1--Summary of Statutory Amendments to SIJ Classification
----------------------------------------------------------------------------------------------------------------
                 Legislation                                               Amendment
----------------------------------------------------------------------------------------------------------------
The Immigration and Nationality Technical      Expanded the group of people eligible for SIJ
 Corrections Act of 1994, Public Law 103-      classification to include those a juvenile court has legally
 416, 108 Stat. 4319 (Jan. 25, 1994).          committed to, or placed under the custody of, an agency or
                                               department of a State.
The Departments of Commerce, Justice, and      Required that dependency, commitment, or placement be due
 State, the Judiciary, and Related Agencies    to abuse, neglect, or abandonment.
 Appropriations Act, 1998 (CJS 1998            Added consent functions of the Attorney General (later
 Appropriations Act), Public Law 105-119,      changed to the Secretary) of ``express consent'' to the
 111 Stat. 2440 (Nov. 26, 1997).               dependency order as a precondition to the grant of SIJ and
                                               ``specific consent'' to juvenile court jurisdiction to determine
                                               custody or placement of a person in the actual or constructive
                                               custody of the federal government (later modified by TVPRA 2008).
The Violence Against Women and Department of   Protected a petitioner seeking SIJ classification by
 Justice Reauthorization Act of 2005 (VAWA     prohibiting DHS from compelling them to contact an alleged
 2005), Public Law 109-162, 119 Stat. 2960     abuser, or family member of an alleged abuser.
 (Jan. 5, 2006).
The William Wilberforce Trafficking Victims    Created the requirement that a petitioner's reunification
 Protection Reauthorization Act of 2008        with one or both parents not be viable due to abuse, neglect,
 (TVPRA 2008), Public Law 110-457, 112 Stat.   abandonment, or a similar basis under State law (replaced a
 5044 (Dec. 23, 2008).                         previous requirement to have ``been deemed eligible . . . for
                                               long-term foster care'').
                                               Expanded the group of people eligible for SIJ
                                               classification to include those placed by a juvenile court with
                                               an individual or entity.

[[Page 13068]]

 
                                               Modified the consent requirements so that DHS consent is
                                               to the grant of SIJ classification and vested the former
                                               ``specific consent'' function with HHS.
                                               Provided age-out protection so that USCIS cannot deny SIJ
                                               classification if someone was under 21 years of age when the
                                               petition was filed.
                                               Created a statutory timeframe of 180 days to adjudicate
                                               SIJ petitions.
                                               Exempted SIJs from additional grounds of inadmissibility
                                               in relation to an application for adjustment of status.
----------------------------------------------------------------------------------------------------------------

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:
    [cir] Immigration and Nationality Technical Corrections Act of 
1994, Public Law 103-416, 108 Stat. 4319 (Jan. 25, 1994);
    [cir] 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);
    [cir] Violence Against Women and Department of Justice 
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 
2960 (Jan. 5, 2006); and
    [cir] 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

[[Page 13069]]

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

[[Page 13070]]

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

[[Page 13071]]

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).

[[Page 13072]]

(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

[[Page 13073]]

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.\4\ 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.
---------------------------------------------------------------------------

    \4\ 8 CFR 204.11 was amended in 2009 to eliminate reference to 
legacy INS in accordance with the creation of DHS. 74 FR 26937 (June 
5, 2009).
---------------------------------------------------------------------------

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.\5\ DHS has reviewed 
all 134 of the public comments received and addresses them in this 
final rule.
---------------------------------------------------------------------------

    \5\ Six additional comments were received but not posted on 
www.regulations.gov or considered by DHS because they were 
identified as being duplicate, irrelevant, or internal comments.
---------------------------------------------------------------------------

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

[[Page 13074]]

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

[[Page 13075]]

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.

[[Page 13076]]

    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.\6\ 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.
---------------------------------------------------------------------------

    \6\ See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392 (9th 
Cir. 1995); Mobil Oil Corp. v. EPA, 35 F.3d 579, 584-85 (D.C. Cir. 
1994).
---------------------------------------------------------------------------

    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, Sec.  
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

[[Page 13077]]

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

[[Page 13078]]

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.

   Table 2--SIJ Eligibility Requirements at Time of Filing and Time of
                       Adjudication of Form I-360
------------------------------------------------------------------------
                               Time of filing Form  Time of adjudication
   Eligibility requirement            I-360              Form I-360
------------------------------------------------------------------------
Under 21 years of age.......  Yes.................  No.
Unmarried...................  Yes.................  Yes.
Physical presence...........  Yes.................  Yes.
Valid juvenile court order..  Yes, unless meets     Yes, unless meets
                               one of the two        one of the two
                               exceptions.           exceptions.
------------------------------------------------------------------------

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

[[Page 13079]]

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

[[Page 13080]]

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 \7\ 
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 
Sec.  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 Sec.  300.
---------------------------------------------------------------------------

    \7\ See also USCIS, ``Policy Alert: Special Immigrant Juvenile 
Classification,'' Nov. 19, 2019, available at https://www.uscis.gov/sites/default/files/policymanual/updates/20191119-SIJ.pdf.
---------------------------------------------------------------------------

    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.'' \8\
---------------------------------------------------------------------------

    \8\ USCIS Policy Manual, Volume 6, Immigrants, Part J, Special 
Immigrant Juveniles, Chapter 2, Eligibility Requirements [6 USCIS-PM 
J.2], available at https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2.
---------------------------------------------------------------------------

    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

[[Page 13081]]

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

[[Page 13082]]

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).
---------------------------------------------------------------------------

    \9\ Merriam-Webster.com, ``present perfect,'' https://www.merriam-webster.com/dictionary/present%20perfect (last visited 
Aug. 18, 2021).
---------------------------------------------------------------------------

    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

[[Page 13083]]

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.\10\ 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.
---------------------------------------------------------------------------

    \10\ USCIS Policy Manual, Volume 6, Immigrants, Part J, Special 
Immigrant Juveniles, Chapter 2, Eligibility Requirements [6 USCIS-PM 
J.2], available at https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2.
---------------------------------------------------------------------------

    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

[[Page 13084]]

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

[[Page 13085]]

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,\11\ 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

[[Page 13086]]

render it meaningless by applying a presumption that every petition 
that includes a juvenile court order merits consent.
---------------------------------------------------------------------------

    \11\ DHS notes that ``express'' consent to an adjudicative 
process it controls, unlike express consent to a dependency order 
issued by a State juvenile court, would result in an adjudicative 
redundancy.
---------------------------------------------------------------------------

    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

[[Page 13087]]

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 \12\ 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.
---------------------------------------------------------------------------

    \12\ USCIS, ``Memorandum #3--Field Guidance on Special Immigrant 
Juvenile Status Petitions'' (``Policy Memorandum #3''), May 27, 
2004, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf.
---------------------------------------------------------------------------

    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.\13\
---------------------------------------------------------------------------

    \13\ USCIS Policy Manual, Volume 6, Immigrants, Part J, Special 
Immigrant Juveniles, Chapter 3, Documentation and Evidence [6 USCIS-
PM J.3], available at https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-3.
---------------------------------------------------------------------------

(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

[[Page 13088]]

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

[[Page 13089]]

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,\14\ nor 
will it consider factors without a nexus to the petitioner's 
motivations for seeking the juvenile court determinations.
---------------------------------------------------------------------------

    \14\ Saravia v. Barr, 3:17-cv-03615 (N.D. Cal. Jan. 14, 2021).
---------------------------------------------------------------------------

(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.\15\ 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.
---------------------------------------------------------------------------

    \15\ The proposed rule cited to Yeboah v. DOJ, 345 F.3d 216 (3d 
Cir. 2003), which held, in part, that legacy INS acted within its 
discretion in considering evidence of the petitioner's relationship 
with his family and physical and mental condition in deciding 
whether to deny consent. Yeboah addressed the legacy INS's specific 
consent function for juveniles in INS custody, which has since been 
amended by the 2008 TVPRA.
---------------------------------------------------------------------------

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.\16\
---------------------------------------------------------------------------

    \16\ TVPRA 2008 vested responsibility for issuing specific 
consent for unaccompanied children in HHS custody with HHS, rather 
than DHS. It also simplified the consent language used to refer 
simply to ``custody'' rather than ``actual or constructive custody'' 
as the requirement was previously worded after its creation by the 
1998 Appropriations Act. The 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).
---------------------------------------------------------------------------

    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

[[Page 13090]]

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

[[Page 13091]]

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

[[Page 13092]]

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.\17\
---------------------------------------------------------------------------

    \17\ DHS has determined that this approach is a logical 
outgrowth of the proposed rule. DHS proposed its interpretation of 
the 180-day timeframe (76 FR at 54983), and clarifies in this final 
rule that it 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. Though USCIS considered the reasoning 
in the injunction, the Moreno Galvez order has not changed the 
Agency's ultimate decision to finalize its proposal.
---------------------------------------------------------------------------

    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

[[Page 13093]]

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:

       Table 3--Automatic Revocation Grounds in This Final Rule *
------------------------------------------------------------------------
                                               Corresponding regulatory
             Revocation ground                           cite
------------------------------------------------------------------------
By virtue of a court order, the individual   8 CFR 204.11(j)(1)(i).
 reunifies with a maltreating parent named
 in the original court order that found
 reunification with that parent not viable.
There is a determination in administrative   8 CFR 204.11(j)(1)(ii).
 or judicial proceedings that it is in the
 individual's best interest to be returned
 to the country of nationality or last
 habitual residence of the petitioner or
 their parent(s).
------------------------------------------------------------------------
* If any of the following revocation grounds arise after USCIS has
  approved an SIJ petition but prior to granting of adjustment of status
  to lawful permanent resident, then USCIS will revoke the SIJ
  classification.

    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.

[[Page 13094]]

    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

[[Page 13095]]

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

[[Page 13096]]

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.\18\ In this final rule, DHS is 
incorporating these statutorily mandated changes and codifying its 
long-standing policies and practices already in place.
---------------------------------------------------------------------------

    \18\ See Table 1, Summary of Statutory Amendments to SIJ 
Classification, for a list of all legislation impacting the 
statutory requirements of SIJ.
---------------------------------------------------------------------------

    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 \19\ in FY 2008 to

[[Page 13097]]

a maximum of $7,934,370 \20\ in FY 2017. Table 4 provides a more 
detailed summary of the final rule provisions and their economic 
impacts under the no action baseline.
---------------------------------------------------------------------------

    \19\ Total Cost in 2008 ($1,708) + Total Cost for In-house 
Attorney in 2008 ($235,137) = $236,845 minimum cost in 2008.
    \20\ Total Cost in 2017 ($33,099) + Total Cost for Outsourced 
Attorney in 2017 ($7,901,271) = $7,934,370 maximum cost in 2017.

                Table 4--Summary of Major Provisions and Impacts Based on the No Action Baseline
----------------------------------------------------------------------------------------------------------------
                                                                Estimated benefits of    Estimated costs of the
       Final rule provisions                 Purpose                the provision               provision
----------------------------------------------------------------------------------------------------------------
1. Inadmissibility Provisions:
   An applicant for          Amend 8 CFR       SIJ               DHS estimates
   adjustment of status based on     204.11 to promote         beneficiaries who file    the quantified costs of
   special immigrant juvenile        consistency with The      Form I-601 who have       the provision rule to
   classification is not subject     William Wilberforce       simple possession         be approximately $4,791
   to the following                  Trafficking Victims       offenses prior to         which reflects the
   inadmissibility grounds:          Protection                applying for LPR, and     total cost for SIJ
   (A) Public charge (INA    Reauthorization Act of    may qualify for a         beneficiaries to file
   section 212(a)(4));               2008 (TVPRA 2008),        waiver to an              Form I-601 who have
   (B) Labor certification   Public Law 110-457, 112   inadmissibility ground    simple possession
   (INA section 212(a)(5)(A));       Stat. 5044 (Dec. 23,      under INA section         offenses prior to
   (C) Noncitizens present   2008).                    212(a)(2), 8 U.S.C.       applying for LPR, and
   without admission or parole                                 1182(a)(2).               may qualify for a
   (INA section 212(a)(6)(A));                                 This              waiver to an
   (D) Misrepresentation                               modification may allow    inadmissibility ground
   (INA section 212(a)(6)(C));                                 SIJs with a simple        under INA section
   (E) Stowaways (INA                                  possession offense, the   212(a)(2), 8 U.S.C.
   section 212(a)(6)(D));                                      chance to remain          1182(a)(2).
   (F) Documentation                                   eligible for lawful
   requirements for immigrants                                 permanent residence.
   (INA section 212(a)(7)(A)); and
   (G) Noncitizens
   unlawfully present (INA section
   212(a)(9)(B)).
2. Marriage as a Ground for
 Automatic Revocation:
   DHS has removed           DHS is removing   SIJ               DHS estimates
   marriage of the SIJ beneficiary   marriage of the SIJ       beneficiaries will no     total annual quantified
   as a basis for automatic          beneficiary as a basis    longer be subject to      costs of approximately
   revocation, amending its prior    for automatic             automatic revocation of   $30,080 to which
   interpretation of INA 245(h).     revocation. DHS will      their approved SIJ        reflects the total cost
   INA 245(h); 8 U.S.C. 1255(h)      maintain its long-        petition if they marry.   of SIJ beneficiaries
   explicitly references ``a         standing regulatory                                 who file Form I-485
   special immigrant described in    requirement, consistent                             and, who marry prior to
   section 1101(a)(27)(J) of this    with Congress' use of                               applying for LPR.
   title''. Although the SIJ         the term ``child'' in
   definition at section             the ``Transition Rule''
   1101(a)(27)(J) did not use the    provision at section
   term child, USCIS incorporated    235(d)(6) of the TVPRA
   the child definition at INA       2008, that a petitioner
   101(b)(1) into the regulations.   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).
----------------------------------------------------------------------------------------------------------------

    In addition to the impacts summarized above, and as required by the 
OMB Circular A-4,\21\ Table 5 presents the prepared accounting 
statement showing the costs and benefits associated with this 
regulation. as required by OMB Circular A-4.
---------------------------------------------------------------------------

    \21\ White House, Office of Management and Budget, Circular A-4 
(Sept. 17, 2003), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.

                          Table 5--OMB A-4 Accounting Statement for No Action Baseline
                           [$ millions, FY 2020--time period: FY 2022 through FY 2031]
----------------------------------------------------------------------------------------------------------------
           Category              Primary estimate      Minimum estimate      Maximum estimate    Source citation
----------------------------------------------------------------------------------------------------------------
                                                    BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized Benefits...........                                 N/A                                Regulatory
                                                                                                  Impact
                                                                                                  Analysis
                                                                                                  (``RIA'').
Annualized quantified, but un-                                N/A                                RIA.
 monetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified Benefits........  The eligibility provisions offer an increased protection and      RIA.
                               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 (e.g., 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. 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.

[[Page 13098]]

 
                               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, promoting peace of mind.
                               DHS has also expanded application of the simple possession
                               exception to certain grounds of inadmissibility under the INA.
                               This modification may allow SIJ-classified individuals to remain
                               eligible for lawful permanent residence.
----------------------------------------------------------------------------------------------------------------
                                                      COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs                   $0.03                   N/A                   N/A   RIA.
 (7%).
Annualized monetized costs                   $0.03                   N/A                   N/A
 (3%).
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but un-                                N/A
 monetized, costs.
Qualitative (unquantified)                                    N/A                                RIA.
 costs.
----------------------------------------------------------------------------------------------------------------
                                                    TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized                                          N/A
 transfers: ``on budget''.
From whom to whom?...........                                 N/A
Annualized monetized                                          N/A
 transfers: ``off-budget''.
From whom to whom?...........
----------------------------------------------------------------------------------------------------------------
   Miscellaneous analyses/                                  Effects                                 Source
           category                                                                                  citation
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or                                  None                                RIA.
 tribal governments.
Effects on small businesses..                                None                                RIA.
Effects on wages.............                                None                                None.
Effects on growth............                                None                                None.
----------------------------------------------------------------------------------------------------------------

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.\22\ 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 \23\ 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.
---------------------------------------------------------------------------

    \22\ Noncitizens may file a Petition for Amerasian, Widow(er), 
or Special Immigrant (Form I-360) for SIJ classification, and if a 
visa number is available, they may file an Application to Register 
Permanent Residence or Adjust Status (Form I-485) to become a lawful 
permanent resident (LPR). Note that a grant of SIJ classification 
does not guarantee permanent resident status.
    \23\ See USCIS, ``Special Immigrant Juvenile Petitions,'' 
Proposed Rule, 76 FR 54978, 54984-95 (Sep. 6, 2011).
---------------------------------------------------------------------------

(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

[[Page 13099]]

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.\24\ 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.
---------------------------------------------------------------------------

    \24\ DHS did not include a list of examples of qualifying 
placements to avoid confusion that qualifying placements are limited 
to those listed.
---------------------------------------------------------------------------

    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

[[Page 13100]]

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).\25\ 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.
---------------------------------------------------------------------------

    \25\ The protection at INA section 287(h) for a petitioner 
seeking SIJ classification from being compelled to contact an 
alleged abuser, or the abuser's family member, was added by the 
Violence Against Women and Department of Justice Reauthorization Act 
of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (Jan. 5, 
2006).
---------------------------------------------------------------------------

(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.\26\
---------------------------------------------------------------------------

    \26\ Calculation: ($18,240 Filing Fees) + ($11,840 Opportunity 
Cost of Time) = $30,080 Total Cost.
---------------------------------------------------------------------------

(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.

[[Page 13101]]

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--Approvals, Denials, and Receipts of Petition for Amerasian, Widow(er), or Special Immigrant (Form I-
                360) Application Class: Special Immigrant Juveniles, for FY 2003 Through FY 2020
----------------------------------------------------------------------------------------------------------------
                   Fiscal year                       Receipts        Approvals        Denials       Revocations
----------------------------------------------------------------------------------------------------------------
2003............................................              79              33               8               0
2004............................................             202             132              32               1
2005............................................             327             246              35               1
2006............................................             485             412              34               1
2007............................................             659             577              45               0
2008............................................           1,137           1,045              73               1
2009............................................           1,369           1,281              69               3
2010............................................           1,646           1,537              82               2
2011............................................           2,226           2,095              98               2
2012............................................           2,967           2,788             155               3
2013............................................           3,996           3,756             148              20
2014............................................           5,815           5,349             323              26
2015............................................          11,528          10,767             651              70
2016............................................          19,572          18,223           1,121              99
2017............................................          22,154          19,471           2,399              23
2018............................................          21,899          20,500           1,111               6
2019............................................          20,783          19,733             688               3
2020............................................          18,788          17,220             418               1
                                                 ---------------------------------------------------------------
    5-year Total *..............................         103,196          95,147           5,737             132
----------------------------------------------------------------------------------------------------------------
5-year Annual Average *.........................          20,639          19,029           1,147              26
----------------------------------------------------------------------------------------------------------------
Note: The report reflects the most up-to-date data available at the time the system was queried. Database
  Queried: March. 5, 2021, System: USCIS C3 Consolidated via SASPME, Office of Policy and Strategy (OP&S),
  Policy Research Division (PRD). The data reflect the current status of the petitions received in each fiscal
  year.
* 5-year calculations are based only on FY 2016 through FY 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.\27\ 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.
---------------------------------------------------------------------------

    \27\ Calculation: ((FY 2020 Form I-360 receipts 18,788-FY 2017 
Form I-360 receipts 22,154)/FY 2017 Form I-360 receipts 22,154) x 
100) = -15 percent (rounded).
---------------------------------------------------------------------------

    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.\28\ 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.
---------------------------------------------------------------------------

    \28\ See Instructions for Petition for Amerasian, Widow(er), or 
Special Immigrant (time burden estimate in the Paperwork Reduction 
Act section). Form I-360 https://www.uscis.gov/sites/default/files/document/forms/i-360.pdf. OMB No. 1615-0020. Expires Jun. 30, 2022. 
A separate time burden of 3 hours and 5 minutes (3.08 hours) per 
response for Iraqi or Afghan Nationals employed by or on behalf of 
the U.S. Government in Iraq or Afghanistan, and 2 hours and 20 
minutes (2.33 hours) per response for Religious Workers. DHS does 
not expect an additional burden for Iraqi or Afghan Nationals 
employed by or on behalf of the U.S. Government in Iraq or 
Afghanistan or Religious workers. The public reporting burden for 
this collection of information is estimated at 2 hours and 5 minutes 
(2.08 hours) per response.
---------------------------------------------------------------------------

    To estimate the opportunity costs of time for petitioners who are 
not using a

[[Page 13102]]

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.'' \29\ 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.\30\ The fully loaded per hour wage 
rate for someone earning the prevailing minimum wage rate is 
$17.11.\31\ Therefore, DHS estimates that the opportunity cost for each 
petitioner is $35.59 per response for the SIJ petition.\32\
---------------------------------------------------------------------------

    \29\ ``Americans Are Seeing Highest Minimum Wage in History 
(Without Federal Help)'' Ernie Tedeschi, The New York Times, April 
24, 2019. Accessed at https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html (last visited 
June 25, 2020).
    \30\ The benefits-to-wage multiplier is calculated as follows: 
($38.60 Total Employee Compensation per hour)/($26.53Wages and 
Salaries per hour) = 1.454964 = 1.45 (rounded). See U.S. Department 
of Labor, Bureau of Labor Statistics, Economic News Release, 
Employer Cost for Employee Compensation (December 2020), Table 1. 
Employer Costs for Employee Compensation by ownership (Dec. 2020), 
https://www.bls.gov/news.release/archives/ecec_03182021.pdf (last 
visited September 2, 2021).
    \31\ Calculation: (Effective Minimum Wage Rate) $11.80 x 
(Benefits-to-wage multiplier) 1.45 = $17.11 per hour.
    \32\ Calculation: (Effective Wage) $17.11 x (Estimated 
Opportunity of Cost to file Form I-360) 2.08 hours = $35.59.
---------------------------------------------------------------------------

    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 \33\ of Form I-360 petitions are filed with 
a Form G-28. The remaining 4.2 percent \34\ of petitions are filed 
without a Form G-28.
---------------------------------------------------------------------------

    \33\ Calculation: (19,771 Form G-28/20,639 Form I-360 petitions) 
x 100 = 95.8 percent (rounded).
    \34\ Calculation: 100 percent-95.8 percent filing with Form G-28 
= 4.2 percent only filing Form I-360.

   Table 7--Form I-360, SIJ Petitions Submitted to USCIS From FY 2016
                    Through FY 2020 With a Form G-28
------------------------------------------------------------------------
                                                            Number of
             Fiscal year              Number of Form I-  petitions filed
                                        360 receipts     with Form G-28
------------------------------------------------------------------------
2016................................            19,572            17,830
2017................................            22,154            21,252
2018................................            21,899            21,306
2019................................            20,783            20,244
2020................................            18,788            18,221
                                     -----------------------------------
    Total...........................           103,196            98,853
------------------------------------------------------------------------
5-year Annual Average...............            20,639            19,771
------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research
  Division (PRD), Claims 3 database. March 5, 2021 & USCIS Analysis.

    DHS estimates the opportunity cost of time for attorneys or 
accredited representatives using an average hourly wage rate $71.59 for 
lawyers.\35\ 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.\36\ DHS calculates the average total rate of 
compensation as $103.81 \37\ 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.\38\ 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
---------------------------------------------------------------------------

    \35\ See U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment Statistics, May 2020 National Occupational 
Employment and Wage Estimates-National, SOC 23-1011--Lawyers, 
https://www.bls.gov/oes/2020/may/oes_nat.htm (last visited March 31, 
2021).
    \36\ The benefits-to-wage multiplier is calculated as follows: 
($38.60 Total Employee Compensation per hour)/($26.53Wages and 
Salaries per hour) = 1.454964 = 1.45 (rounded). See U.S. Department 
of Labor, Bureau of Labor Statistics, Economic News Release, 
Employer Cost for Employee Compensation (December 2020), Table 1. 
Employer Costs for Employee Compensation by ownership (Dec. 2020), 
https://www.bls.gov/news.release/archives/ecec_03182021.pdf (last 
visited March 31, 2021).
    \37\ Calculation of weighted mean hourly wage for lawyers: 
$103.81 average hourly total rate of compensation for lawyers = 
$71.59 average hourly wage rate for lawyers x 1.45 benefits-to-wage 
multiplier.
    \38\ Calculation: (Effective Wage) $103.81 x (Estimated 
Opportunity of Cost to file Form I-360) 2.08 = $215.92.

---------------------------------------------------------------------------

[[Page 13103]]

$178.98 \39\ to approximate an hourly billing rate for an outsourced 
lawyer.\40\ Therefore, DHS estimates that the opportunity cost for each 
petitioner is $372.28 per response for the out sourced attorney.\41\
---------------------------------------------------------------------------

    \39\ The DHS analysis in, ``Exercise of Time-Limited Authority 
to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program'' (May 31, 2018), available 
at https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of 2.5 to convert 
in-house attorney wages to the cost of outsourced attorney wages 
(Last visited July 28, 2021). Also, the analysis in the DHS ICE 
rule, ``Final Small Entity Impact Analysis: Safe-Harbor Procedures 
for Employers Who Receive a No-Match Letter'' at G-4 (Aug 25, 2008), 
available at http://www.regulations.gov/#!documentDetail;D=ICEB-
2006-0004-0922 used 2.5 as a multiplier for outsourced labor wages 
in this rule, pages 143-144.
    \40\ Calculation: (Mean hourly wage of Lawyers) $71.59 x 
(Benefits-to-wage multiplier) 2.5 = $178.98 per hour for an 
outsourced lawyer.
    \41\ Calculation: (Effective Wage) $178.98 x (Estimated 
Opportunity of Cost to file Form I-360) 2.08 hours = $372.28.
---------------------------------------------------------------------------

    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 \42\ 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.
---------------------------------------------------------------------------

    \42\ Calculation: 100 percent - 95.8 percent filing with Form G-
28 = 4.2 percent only filing Form I-360.

                   Table 8--Number of Forms Filed by Petitioners and Accredited Representatives
----------------------------------------------------------------------------------------------------------------
                                                                                                Number of forms
                                                                             Number of forms        filed by
                                                                                 filed by        accredited by
                        Fiscal year                            Receipts        petitioners           legal
                                                                                  (4.2%)         representation
                                                                                                    (95.8%)
----------------------------------------------------------------------------------------------------------------
2008......................................................           1,137                 48              1,089
2009......................................................           1,369                 57              1,312
2010......................................................           1,646                 69              1,577
2011......................................................           2,226                 93              2,133
2012......................................................           2,967                125              2,842
2013......................................................           3,996                168              3,828
2014......................................................           5,815                244              5,571
2015......................................................          11,528                484             11,044
2016......................................................          19,572                822             18,750
2017......................................................          22,154                930             21,224
2018......................................................          21,899                920             20,979
2019......................................................          20,783                873             19,910
2020......................................................          18,788                789             17,999
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5,
  2021 & USCIS Analysis.

    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 \43\ in FY 2008 to a maximum of 
$7,934,370 \44\ in FY 2017.
---------------------------------------------------------------------------

    \43\ Total Cost in 2008 ($1,708) + Total Cost for In-house 
Attorney in 2008 ($235,137) = $236,845 minimum cost in 2008.
    \44\ Total Cost in 2017 ($33,099) + Total Cost for Outsourced 
Attorney in 2017 ($7,901,271) = $7,934,370 maximum cost in 2017.

                                          Table 9--Range of Potential Total Costs for Filers by Type and by Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Forms filed by                      Total cost for   Total cost for an
                                                                Forms filed by     accredited by    Total cost for       in-house          outsourced
                         Fiscal year                              petitioner           legal          petitioners        attorney      attorney ($372.28/
                                                                                  representation     ($35.59/each)    ($215.92/each)         each)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008.........................................................                48             1,089            $1,708          $235,137           $405,413
2009.........................................................                57             1,312             2,029           283,287            488,431
2010.........................................................                69             1,577             2,456           340,506            587,086
2011.........................................................                93             2,133             3,310           460,557            794,073
2012.........................................................               125             2,842             4,449           613,645          1,058,020
2013.........................................................               168             3,828             5,979           826,542          1,425,088
2014.........................................................               244             5,571             8,684         1,202,890          2,073,972
2015.........................................................               484            11,044            17,226         2,384,620          4,111,460
2016.........................................................               822            18,750            29,255         4,048,500          6,980,250
2017.........................................................               930            21,224            33,099         4,582,686          7,901,271
2018.........................................................               920            20,979            32,743         4,529,786          7,810,062
2019.........................................................               873            19,910            31,070         4,298,967          7,412,095
2020.........................................................               789            17,999            28,081         3,886,344          6,700,668
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5, 2021 & USCIS Analysis.


[[Page 13104]]

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 \45\ 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.
---------------------------------------------------------------------------

    \45\ See Instructions for Instructions for Application to 
Register Permanent Residence or Adjust Status. Form I-485. OMB No. 
1615-0023. Expires March 31, 2023. Accessed https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf (last visited 
March 22, 2021).
---------------------------------------------------------------------------

    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 \47\ (1.75 hours) per application.
---------------------------------------------------------------------------

    \47\ See Instructions for Application for Waiver of Grounds of 
Inadmissibility. Form I-601. OMB No. 1615-0029. Expires July 31, 
2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-601instr-pc.pdf (last visited March 22, 2021).
---------------------------------------------------------------------------

    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.\48\ 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 \49\ based on the pre statutory baseline.
---------------------------------------------------------------------------

    \48\ Calculation: (Fully-loaded Effective Wage) $17.11 x 
(Estimated Opportunity Cost to file Form I-601) = $17.11 x 1.75 = 
$29.94.
    \49\ Calculation: Estimated opportunity cost per person filing 
($29.94) + Fee for Form I-601 ($930) = $959.94
---------------------------------------------------------------------------

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.\50\ 
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.\51\ The total cost for a petitioner to file Form I-765 
would be $491.27.
---------------------------------------------------------------------------

    \50\ See Instructions for Application for Employment 
Authorization. Form I-765. OMB No. 1615-0040. Expires July 31, 2022. 
Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf (last visited March 22, 2021).
    \51\ Calculation: (Effective wage) $17.11 x (Estimated 
Opportunity Cost to file Form I-765) = $17.11 x 4.75 = $81.27.
---------------------------------------------------------------------------

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.\52\ 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.\53\
---------------------------------------------------------------------------

    \52\ See Instructions for Request for Fee Waiver. Form I-912. 
OMB No. 1615-0116. Expires 09/30/2024. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf 
(last visited October 19, 2021).
    \53\ Calculation: (Fully-loaded Effective Wage) $17.11 x 
(Estimated Opportunity Cost to file Form I-912) 2.55 = $43.63.
---------------------------------------------------------------------------

(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

[[Page 13105]]

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.

              Table 10--Number of Form I-360 Petitions Revoked by Age, for FY 2016 Through FY 2020
----------------------------------------------------------------------------------------------------------------
                                                                     Age range
                   Fiscal year                   ------------------------------------------------      Total
                                                       0-15            16-20            21+
----------------------------------------------------------------------------------------------------------------
2016............................................              21              59              19              99
2017............................................               4              14               5              23
2018............................................               0               6               0               6
2019............................................               1               2               0               3
2020............................................               0               0               1               1
                                                 ---------------------------------------------------------------
    Total.......................................              26              81              25             132
----------------------------------------------------------------------------------------------------------------
5-year Annual Average...........................               5              16               5              26
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research Division (PRD), Claims 3 database. March 5,
  2021 & USCIS Analysis.

    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 \54\ of Form I-360 petitions are filed with 
a Form G-28. The remaining 4.2 percent \55\ of petitions are filed 
without a Form G-28.
---------------------------------------------------------------------------

    \54\ Calculation: (19,771 Form G-28/20,639 Form I-360 petitions) 
x 100 = 95.8 percent (rounded).
    \55\ Calculation: 100 percent - 95.8 percent filing with Form G-
28 = 4.2 percent only filing Form I-360.

   Table 11--Form I-360, SIJ Petitions Submitted to USCIS, for FY 2016
                             Through FY 2020
------------------------------------------------------------------------
                                                           Number of
            Fiscal year             Number of Form I-   petitions filed
                                       360 receipts      with Form G-28
------------------------------------------------------------------------
2016..............................             19,572             17,830
2017..............................             22,154             21,252
2018..............................             21,899             21,306
2019..............................             20,783             20,244
2020..............................             18,788             18,221
                                   -------------------------------------
    Total.........................            103,196             98,853
------------------------------------------------------------------------
5-year Annual Average.............             20,639             19,771
------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy (OP&S), Policy Research
  Division (PRD), Claims 3 database. March. 5, 2021 & USCIS Analysis.


[[Page 13106]]

    DHS estimates the opportunity cost of time for attorneys or 
accredited representatives using an average hourly wage rate $71.59 for 
lawyers.\56\ 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.\57\ DHS calculates the average total rate of 
compensation as $103.81 \58\ per hour for a lawyer.
---------------------------------------------------------------------------

    \56\ See U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment Statistics, May 2020 National Occupational 
Employment and Wage Estimates-National, SOC 23-1011--Lawyers, 
https://www.bls.gov/oes/2020/may/oes_nat.htm (last visited March 31, 
2021).
    \57\ The benefits-to-wage multiplier is calculated as follows: 
($38.60 Total Employee Compensation per hour)/($26.53 Wages and 
Salaries per hour) = 1.454964 = 1.45 (rounded). See U.S. Department 
of Labor, Bureau of Labor Statistics, Economic News Release, 
Employer Cost for Employee Compensation (December 2020), Table 1. 
Employer Costs for Employee Compensation by ownership (Dec. 2020), 
https://www.bls.gov/news.release/archives/ecec_03182021.pdf (last 
visited March 31, 2021).
    \58\ Calculation of weighted mean hourly wage for lawyers: 
$103.81 average hourly total rate of compensation for lawyers = 
$71.59 average hourly wage rate for lawyers x 1.45 benefits-to-wage 
multiplier.
---------------------------------------------------------------------------

    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 \59\ of SIJ petitions are filed without a Form G-
28. DHS estimates that a maximum 15 \60\ petitions annually would be 
filed with a Form G-28 and 1 \61\ petition would be filed by the 
petitioner.
---------------------------------------------------------------------------

    \59\ Calculation: 100 percent - 95.8 percent filing with Form G-
28 = 4.2 percent only filing Form I-360.
    \60\ Calculation: (95.8 percent x 16 newly eligible population) 
= 15 new population filing Forms I-485 and G-28.
    \61\ Calculation: (4.2 percent x 16 newly eligible population) = 
1 new population filing only Form I-485
---------------------------------------------------------------------------

    To estimate the opportunity cost of time to file Form I-485, DHS 
applies the estimated public reporting time burden (6.70 hours \62\) 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 \63\ for lawyers and $115 \64\ 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.\65\ 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 \66\ 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 \67\ 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.\68\
---------------------------------------------------------------------------

    \62\ See Instructions for Application to Register Permanent 
Residence or Adjust Status. Form I-485. OMB No. 1615-0023. Expires 
Sept. 30, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf (last visited March 22, 2021).
    \63\ Calculation: (15 new population filing Forms I-485 and G-
28) x (6.70 Time Burden to Complete Form I-360) x ($103.81 
Compensation Rate of a Lawyer) = $10,433.
    \64\ Calculation: (1 new population filing Form I-485) x (6.70 
Time Burden to Complete Form I-485) x ($17.11 Compensation Rate of a 
Petitioner) = $115.
    \65\ See Instructions for Notice of Entry of Appearance as 
Attorney or Accredited Representative. Form G-28. OMB No. 1615-0105. 
Expires May 31, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf (last visited March 22, 
2021).
    \66\ Calculation: (15 new population filing Forms I-485 and G-
28) x (0.83 Time Burden to Complete Form G-28) x ($103.81 
Compensation Rate of a Lawyer) = $1,292.
    \67\ Calculation: (16 Total population) x ($1,140 Filing Fee 
Cost per Form I-485) = $18,240.
    \68\ Calculation: ($18,240 Filing Fees) + ($11,840 Opportunity 
Cost of Time) = $30,080 Total Cost.

                              Table 12--Additional Opportunity Costs of Time to Petitioners for Filing Form I-485 Petitions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Time burden to  Time burden to
                          Petitioner type                              Affected      complete Form   complete Form   Compensation     Total opportunity
                                                                      population     I-485 (hours)   G-28 (hours)        rate               cost
                                                                                 A               B               C               D   E = A x (B + C) x D
--------------------------------------------------------------------------------------------------------------------------------------------------------
Attorney or Accredited Representative.............................              15            6.70            0.83         $103.81               $11,725
Petitioner........................................................               1            6.70  ..............           17.11                   115
                                                                   -------------------------------------------------------------------------------------
    Total.........................................................              16  ..............  ..............  ..............                11,840
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

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 \69\ (1.75 hours) per application.
---------------------------------------------------------------------------

    \69\ See Instructions for Application for Waiver of Grounds of 
Inadmissibility. Form I-601. OMB No. 1615-0029. Expires July 31, 
2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-601instr-pc.pdf (last visited March 22, 2021).
---------------------------------------------------------------------------

    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

[[Page 13107]]

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.

    Table 13--Form I-601 Cases Denied After Being Approved for a SIJ
                             classification
                      [For FY 2016 through FY 2021]
------------------------------------------------------------------------
                                                 Approved ** SIJ with a
         I-601 Adjudicated fiscal year                denied I-601
------------------------------------------------------------------------
2016..........................................                        2
2017..........................................                        1
2018..........................................                        5
2019..........................................                        3
2020..........................................                       11
2021 *........................................                        6
                                               -------------------------
    Total.....................................                       28
------------------------------------------------------------------------
5-year Annual Average ***.....................                        4
------------------------------------------------------------------------
Note: The report reflects the most up-to-date data available at the time
  the system was queried. Database Queried: July 22, 2021, System: USCIS
  Claims 3 database, Office of Policy and Strategy (OP&S), Policy
  Research Division (PRD), The data reflect the current status of the
  petitions received in each fiscal year.
* Data for FY 2021 valid only through 07/22/2021.
** As of July 22, 2021, SIJ cases still show a Current Approved Status.
*** 5-year average is based on FY 2016 through FY 2020.

    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 \70\ of Forms I-601 would be 
filed without a Form G-28. DHS estimates that a maximum 4 \71\ Forms I-
601 annually would be filed with a Form G-28 and 0 \72\ petition would 
be filed by the petitioner.
---------------------------------------------------------------------------

    \70\ Calculation: 100 percent - 95.8 percent filing with Form G-
28 = 4.2 percent only filing Form I-360.
    \71\ Calculation: (95.8 percent x 4 newly eligible population) = 
4 new population filing Forms I-601 and G-28.
    \72\ Calculation: (4.2 percent x 4 newly eligible population) = 
0 new population filing only Form I-601.
---------------------------------------------------------------------------

    To estimate the opportunity cost of time to complete and file Form 
I-601, DHS applies the time burden (1.75 hours) \73\ 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.\74\ 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.\75\ 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.\76\
---------------------------------------------------------------------------

    \73\ See Instructions for Application for Waiver of Grounds of 
Inadmissibility. Form I-601. OMB No. 1615-0029. Expires July 31, 
2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-601instr-pc.pdf (last visited March 22, 2021).
    \74\ See Instructions for Notice of Entry of Appearance as 
Attorney or Accredited Representative. Form G-28. OMB No. 1615-0105. 
Expires May 31, 2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf (last visited March 22, 
2021).
    \75\ Calculation: (4 Total population) x ($930 Cost to File) = 
$3,720.
    \76\ Calculation: ($3,720 Filing Fees) + ($1,071 Opportunity 
Cost of Time) = $4,791 Total Cost.

[[Page 13108]]



                            Table 14--Additional Opportunity Costs of Time to Petitioners for Filing Form I-601 Applications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Time burden to  Time burden to
                          Petitioner type                              Affected     complete  Form   complete Form   Compensation     Total opportunity
                                                                      population     I-601 (hours)   G-28 (hours)        rate               cost
                                                                                 A               B               C               D   E = A x (B + C) x D
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lawyer............................................................               4            1.75            0.83         $103.81                $1,071
                                                                   -------------------------------------------------------------------------------------
    Total.........................................................               4  ..............  ..............  ..............                 1,071
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    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.\78\ 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.
---------------------------------------------------------------------------

    \77\ See Instructions for Application for Waiver of Grounds of 
Inadmissibility. Form I-601. OMB No. 1615-0029. Expires July 31, 
2021. Accessed at https://www.uscis.gov/sites/default/files/document/forms/i-601instr-pc.pdf (last visited March 22, 2021).
    \78\ See U.S. Department of State, Visa Bulletin for September 
2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-september-2021.html (listing 
the final action dates for nationals of El Salvador, Guatemala, and 
Honduras as March 15, 2019).
---------------------------------------------------------------------------

    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 15--Summary of Estimated Annual Costs to New Petitioners in This
                     Final Rule--No Action Baseline
------------------------------------------------------------------------
                                                        Total estimated
                Total costs of filing                     annual cost
------------------------------------------------------------------------
Form I-485...........................................            $30,080
Form I-601...........................................              4,791
                                                      ------------------
    Total Annual Cost (undiscounted).................             34,871
------------------------------------------------------------------------


[[Page 13109]]

    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 \79\ in FY 2008 to 
a maximum of $7,934,370 \80\ in FY 2017.
---------------------------------------------------------------------------

    \79\ Total Cost in 2008 ($1,708) + Total Cost for In-house 
Attorney in 2008 ($235,137) = $236,845 minimum cost in 2008.
    \80\ Total Cost in 2017 ($33,099) + Total Cost for Outsourced 
Attorney in 2017 ($7,901,271) = $7,934,370 maximum cost in 2017.

  Table 16--Total Undiscounted and Discounted Costs of This Final Rule--
                           No Action Baseline
------------------------------------------------------------------------
                                          Total estimated costs  $34,871
                                                   (undiscounted)
                  Year                   -------------------------------
                                           Discounted at   Discounted at
                                             3-percent       7-percent
------------------------------------------------------------------------
1.......................................         $33,855         $32,590
2.......................................          32,869          30,458
3.......................................          31,912          28,465
4.......................................          30,982          26,603
5.......................................          30,080          24,863
6.......................................          29,204          23,236
7.......................................          28,353          21,716
8.......................................          27,527          20,295
9.......................................          26,726          18,968
10......................................          25,947          17,727
                                         -------------------------------
    Total...............................         297,457         244,919
------------------------------------------------------------------------
Annualized Cost.........................          34,871          34,871
------------------------------------------------------------------------

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.\81\
---------------------------------------------------------------------------

    \81\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

    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.\82\ 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).\83\
---------------------------------------------------------------------------

    \82\ See U.S. Department of Labor, BLS, ``Historical Consumer 
Price Index for All Urban Consumers (CPI-U): U.S. city average, all 
items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf (last visited Jan. 
13, 2022).
    \83\ Calculation of inflation: (1) Calculate the average monthly 
CPI-U for the reference year (1995) and the current year (2021); (2) 
Subtract reference year CPI-U from current year CPI-U; (3) Divide 
the difference of the reference year CPI-U and current year CPI-U by 
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly 
CPI-U for 2021 - Average monthly CPI-U for 1995)/(Average monthly 
CPI-U for 1995)] * 100 = [(270.970 - 152.383)/152.383] * 100 = 
(118.587/152.383) * 100 = 0.77821673 * 100 = 77.82 percent = 78 
percent (rounded). Calculation of inflation-adjusted value: $100 
million in 1995 dollars * 1.78 = $178 million in 2021 dollars.
---------------------------------------------------------------------------

    This final rule does not contain such a mandate as the term is 
defined under UMRA.\84\ The requirements of title II of UMRA, 
therefore, do not apply, and DHS has not prepared a statement under 
UMRA.
---------------------------------------------------------------------------

    \84\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).

---------------------------------------------------------------------------

[[Page 13110]]

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,\85\ 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.
---------------------------------------------------------------------------

    \85\ See USCIS, ``Special Immigrant Juvenile Petitions,'' 
Proposed Rule, 76 FR 54978, 54984-95 (Sep. 6, 2011).
---------------------------------------------------------------------------

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

[[Page 13111]]

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

0
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.


0
2. Section 204.11 is revised to read as follows:


Sec.  204.11   Special immigrant juvenile classification.

    (a) Definitions. As used in this section, the following definitions 
apply to a request for classification as a special immigrant juvenile.
    Judicial determination means a conclusion of law made by a juvenile 
court.
    Juvenile court means 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.
    Petition means the form designated by USCIS to request 
classification as a special immigrant juvenile and the act of filing 
the request.
    Petitioner means the alien seeking special immigrant juvenile 
classification.
    State means the definition set out in section 101(a)(36) of the 
Act, including an Indian tribe, tribal organization, or tribal 
consortium, operating a program under a plan approved under 42 U.S.C. 
671.
    United States means the definition set out in section 101(a)(38) of 
the Act.
    (b) Eligibility. A petitioner is eligible for classification as a 
special immigrant juvenile under section 203(b)(4) of the Act as 
described at section 101(a)(27)(J) of the Act, if they meet all of the 
following requirements:
    (1) Is under 21 years of age at the time of filing the petition;
    (2) Is unmarried at the time of filing and adjudication;
    (3) Is physically present in the United States;
    (4) Is the subject of a juvenile court order(s) that meets the 
requirements under paragraph (c) of this section; and
    (5) Obtains consent from the Secretary of Homeland Security to 
classification as a special immigrant juvenile. For USCIS to consent, 
the request for SIJ classification must be bona fide, which requires 
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. USCIS 
may withhold consent if evidence materially conflicts with the 
eligibility requirements in paragraph (b) of this section such that the 
record reflects that the request for SIJ classification was not bona 
fide. USCIS approval of the petition constitutes the granting of 
consent.
    (c) Juvenile court order(s). (1) Court-ordered dependency or 
custody and parental reunification determination. The juvenile court 
must have made certain judicial determinations related to the 
petitioner's custody or dependency and determined that the petitioner 
cannot reunify with their parent(s) due to abuse, neglect, abandonment, 
or a similar basis under State law.
    (i) The juvenile court must have made at least one of the following 
judicial determinations related to the petitioner's custodial placement 
or dependency in accordance with State law governing such 
determinations:
    (A) Declared the petitioner dependent upon the juvenile court; or
    (B) Legally committed to or placed the petitioner under the custody 
of an agency or department of a State, or an individual or entity 
appointed by a State or juvenile court.
    (ii) The juvenile court must have made a judicial determination 
that parental reunification with one or both parents is not viable due 
to abuse, abandonment, neglect, or a similar basis under State law. The 
court is not required to terminate parental rights to determine that 
parental reunification is not viable.
    (2) Best interest determination. (i) A determination must be made 
in judicial or administrative proceedings by a court or agency 
recognized by the juvenile court and authorized by law to make such 
decisions that it would not be in the petitioner's best interest to be 
returned to the petitioner's or their parent's country of nationality 
or last habitual residence.
    (ii) 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.
    (3) Qualifying juvenile court order(s). (i) The juvenile court must 
have exercised its authority over the petitioner as a juvenile and made 
the requisite judicial determinations in this paragraph under 
applicable State law to establish eligibility.
    (ii) The juvenile court order(s) must be in effect on the date the 
petitioner files the petition and continue through the time of 
adjudication of the petition, except when the juvenile court's 
jurisdiction over the petitioner terminated solely because:
    (A) The petitioner was adopted, placed in a permanent guardianship, 
or another child welfare permanency goal was reached, other than 
reunification with a parent or parents with whom the court previously 
found that reunification was not viable; or
    (B) The petitioner was the subject of a qualifying juvenile court 
order that was terminated based on age, provided the petitioner was 
under 21 years of age at the time of filing the petition.

[[Page 13112]]

    (d) Petition requirements. A petitioner must submit all of the 
following evidence, as applicable to their petition:
    (1) Petition. A petition by or on behalf of a juvenile, filed on 
the form prescribed by USCIS in accordance with the form instructions.
    (2) Evidence of age. Documentary evidence of the petitioner's age, 
in the form of a valid birth certificate, official government-issued 
identification, or other document that in USCIS' discretion establishes 
the petitioner's age. Under no circumstances is the petitioner 
compelled to submit evidence that would conflict with paragraph (e) of 
this section.
    (3) Juvenile court order(s). Juvenile court order(s) with the 
judicial determinations required by paragraph (c) of this section. 
Where the best interest determination was made in administrative 
proceedings, the determination may be provided in a separate document 
issued in those proceedings.
    (4) Evidence of a similar basis. When the juvenile court determined 
parental reunification was 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. Such evidence must include:
    (i) The juvenile court's determination as to how the basis is 
legally similar to abuse, neglect, or abandonment under State law; or
    (ii) 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.
    (5) Evidentiary requirements for DHS consent. For USCIS to consent, 
the juvenile court order(s) and any supplemental evidence submitted by 
the petitioner must include the following:
    (i) The factual basis for the requisite determinations in paragraph 
(c) of this section; and
    (ii) The relief from parental abuse, neglect, abandonment, or a 
similar basis under State law granted or recognized by the juvenile 
court. Such relief may include:
    (A) The court-ordered custodial placement; or
    (B) The court-ordered dependency on the court for the provision of 
child welfare services and/or other court-ordered or court-recognized 
protective or remedial relief, including recognition of the 
petitioner's placement in the custody of the Department of Health and 
Human Services, Office of Refugee Resettlement.
    (6) U.S. Department of Health and Human Services (HHS) consent. The 
petitioner must provide documentation of specific consent from HHS with 
the petition when:
    (i) The petitioner is, or was previously, in the custody of HHS; 
and
    (ii) While in the custody of HHS, the petitioner obtained a 
juvenile court order that altered the petitioner's HHS custody or 
placement status.
    (e) No contact. During the petition or interview process, USCIS 
will take no action that requires a petitioner to contact the person(s) 
who allegedly battered, abused, neglected, or abandoned the petitioner 
(or the family member of such person(s)).
    (f) Interview. USCIS may interview a petitioner for special 
immigrant juvenile classification in accordance with 8 CFR 103.2(b). If 
an interview is conducted, the petitioner may be accompanied by a 
trusted adult at the interview. USCIS may limit the number of persons 
present at the interview, except that the petitioner's attorney or 
accredited representative of record may be present.
    (g) Time for adjudication. (1) In general, USCIS will make a 
decision on a petition for classification as a special immigrant 
juvenile within 180 days of receipt of a properly filed petition. The 
180 days does not begin until USCIS has received all of the required 
evidence in paragraph (d), and the time period will be reset or 
suspended as described in 8 CFR 103.2(b)(10)(i).
    (2) When a petition for special immigrant juvenile classification 
and an application for adjustment of status to lawful permanent 
resident are pending at the same time, a request for evidence relating 
to the separate application for adjustment of status will not stop or 
suspend the 180-day period for USCIS to decide on the petition for SIJ 
classification.
    (h) Decision. USCIS will notify the petitioner of the decision made 
on the petition, and, if the petition is denied, of the reasons for the 
denial, pursuant to 8 CFR 103.2(b) and 103.3. If the petition is 
denied, USCIS will provide notice of the petitioner's right to appeal 
the decision, pursuant to 8 CFR 103.3.
    (i) No parental immigration rights based on special immigrant 
juvenile classification. The natural or prior adoptive parent(s) of a 
petitioner granted special immigrant juvenile classification will not 
be accorded any right, privilege, or status under the Act by virtue of 
their parentage. This prohibition applies to all of the petitioner's 
natural and prior adoptive parent(s).
    (j) Revocation. (1) Automatic revocation. USCIS will issue a notice 
to the beneficiary of an approved petition for special immigrant 
juvenile classification of an automatic revocation under this paragraph 
as provided in 8 CFR 205.1. The approval of a petition for 
classification as a special immigrant juvenile made under this section 
is revoked as of the date of approval if any one of the following 
circumstances occurs before the decision on the beneficiary's 
application for adjustment of status to lawful permanent resident 
becomes final:
    (i) Reunification of the beneficiary with one or both parents by 
virtue of a juvenile court order, where a juvenile court previously 
deemed reunification with that parent, or both parents, not viable due 
to abuse, neglect, abandonment, or a similar basis under State law; or
    (ii) Administrative or judicial proceedings determine that it is in 
the beneficiary's best interest to be returned to the country of 
nationality or last habitual residence of the beneficiary or of their 
parent(s).
    (2) Revocation on notice. USCIS may revoke an approved petition for 
classification as a special immigrant juvenile for good and sufficient 
cause as provided in 8 CFR 205.2.

PART 205--REVOCATION OF APPROVAL OF PETITIONS

0
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.

0
4. Amend Sec.  205.1 by revising paragraph (a)(3)(iv) to read as 
follows:


Sec.  205.1   Automatic revocation.

    (a) * * *
    (3) * * *
    (iv) Special immigrant juvenile petitions. An approved petition for 
classification as a special immigrant juvenile will be revoked as 
provided in 8 CFR 204.11(j)(1).
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

0
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.

0
6. Amend Sec.  245.1 by revising paragraph (e)(3) to read as follows:


Sec.  245.1   Eligibility.

* * * * *

[[Page 13113]]

    (e) * * *
    (3) Special immigrant juveniles. (i) Eligibility for adjustment of 
status. For the limited purpose of meeting one of the eligibility 
requirements for adjustment of status under section 245(a) of the Act, 
which requires that an individual be inspected and admitted or paroled, 
an applicant classified as a special immigrant juvenile under section 
101(a)(27)(J) of the Act will be deemed to have been paroled into the 
United States as provided in Sec.  245.1(a) and section 245(h) of the 
Act.
    (ii) Bars to adjustment. An applicant classified as a special 
immigrant juvenile is subject only to the adjustment bar described in 
section 245(c)(6) of the Act. Therefore, an applicant classified as a 
special immigrant juvenile is barred from adjustment if deportable due 
to engagement in terrorist activity or association with terrorist 
organizations (section 237(a)(4)(B) of the Act). There is no waiver of 
or exemption to this adjustment bar if it applies.
    (iii) Inadmissibility provisions that do not apply. The following 
inadmissibility provisions of section 212(a) of the Act do not apply to 
an applicant classified as a special immigrant juvenile and do not 
render the applicant ineligible for the benefit:
    (A) Public charge (section 212(a)(4) of the Act);
    (B) Labor certification (section 212(a)(5)(A) of the Act);
    (C) Aliens present without admission or parole (section 
212(a)(6)(A) of the Act);
    (D) Misrepresentation (section 212(a)(6)(C) of the Act);
    (E) Stowaways (section 212(a)(6)(D) of the Act);
    (F) Documentation requirements for immigrants (section 212(a)(7)(A) 
of the Act);
    (G) Aliens unlawfully present (section 212(a)(9)(B) of the Act);
    (iv) Inadmissibility provisions that do apply. Except as provided 
for in paragraph (e)(3)(iii) of this section, all inadmissibility 
provisions in section 212(a) of the Act apply to an applicant 
classified as a special immigrant juvenile.
    (v) Waivers. (A) Pursuant to section 245(h)(2)(B) of the Act, USCIS 
may grant a waiver for humanitarian purposes, to assure family unity, 
or in the public interest for any applicable provision of section 
212(a) of the Act to an applicant seeking to adjust status based upon 
their classification as a special immigrant juvenile, except for the 
following provisions:
    (1) Conviction of certain crimes (section 212(a)(2)(A) of the Act) 
(except for a single offense of simple possession of 30 grams or less 
of marijuana);
    (2) Multiple criminal convictions (section 212(a)(2)(B) of the Act) 
(except for a single offense of simple possession of 30 grams or less 
of marijuana);
    (3) Controlled substance traffickers (section 212(a)(2)(C) of the 
Act) (except for a single offense of simple possession of 30 grams or 
less of marijuana);
    (4) Security and related grounds (section 212(a)(3)(A) of the Act);
    (5) Terrorist activities (section 212(a)(3)(B) of the Act);
    (6) Foreign policy (section 212(a)(3)(C) of the Act); or
    (7) Participants in Nazi persecution, genocide, or the commission 
of any act of torture or extrajudicial killing (section 212(a)(3)(E) of 
the Act).
    (B) The relationship between an applicant classified as a special 
immigrant juvenile and the applicant's natural or prior adoptive 
parents cannot be considered a factor in issuing a waiver based on 
family unity under paragraph (v) of this section.
    (vi) No parental immigration rights based on special immigrant 
juvenile classification. The natural or prior adoptive parent(s) of an 
applicant classified as a special immigrant juvenile will not be 
accorded any right, privilege, or status under the Act by virtue of 
their parentage. This prohibition applies to all of the applicant's 
natural and prior adoptive parent(s) and remains in effect even after 
the special immigrant juvenile becomes a lawful permanent resident or a 
United States citizen.
    (vii) No contact. During the application or interview process, 
USCIS will take no action that requires an applicant classified as a 
special immigrant juvenile to contact the person who allegedly 
battered, abused, neglected, or abandoned the applicant (or the family 
member of such person(s)).
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-04698 Filed 3-7-22; 8:45 am]
BILLING CODE 9111-97-P