SIJ Deferred Action: Process and Timelines for Adjudication
If I file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, as a special immigrant juvenile (SIJ), will you make a deferred action assessment at the same time as the Form I-360 assessment?
For most pending and future SIJ cases, we will automatically make a deferred action determination immediately after we approve Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. This is similar to the process to consider deferred action for self-petitioners under the Violence Against Women Act. After we adjudicate Form I-360 and deferred action, we will issue a Form I-797, Notice of Action, that includes information about the decision on the Form I-360 and a determination on deferred action.
In certain cases, the deferred action determination may take place after we approve the Form I-360 because USCIS needs additional information to make a decision. In these cases, you will receive notification of the deferred action determination separately from the Form I-360 approval.
If you have an approved SIJ Form I-360, but you become newly eligible for consideration of deferred action due to a visa retrogression, we will consider deferred action for your case. You do not need to make a separate request for deferred action, and if you do, we will not accept it. After we decide whether to grant deferred action, we will issue an amended Form I-797, Notice of Action, that includes information about the original grant of SIJ classification and our determination on deferred action.
What is the timeline for granting deferred action?
We began making deferred action determinations on May 6, 2022, 60 days after publishing the Policy Manual update announcing the SIJ deferred action policy. Processing times may vary depending on the circumstances of the case.
If you grant deferred action, and I file Form I-765, Application for Employment Authorization, how long will you take to adjudicate my Form I-765?
If you already granted me SIJ, can I be considered for deferred action?
Yes. If you have an approved SIJ-based Form I-360, and you cannot apply to adjust your status (get a Green Card) because you do not have a current visa number, we will consider you for deferred action if we have not already. You do not need to take any action or ask us to start this process.
I am an SIJ-classified noncitizen with a pending Form I-485, Application to Register Permanent Residence or Adjust Status, and I no longer have a current visa number due to a visa retrogression. Will you consider me for deferred action?
Yes. If you applied for adjustment of status when a visa number was available or when we were accepting Form I-485 based on the “Dates for Filing” chart of the Visa Bulletin, we will consider you for deferred action if the Visa Bulletin subsequently retrogressed and your Form I-485 is still pending.
I received a Form I-360 approval with no corresponding deferred action decision, and there is no apparent reason for delay. Can you explain why this might happen and what I can do to receive deferred action?
As of May 6, 2022, we are considering deferred action when we adjudicate Form I-360 for all pending and future SIJ-based Form I-360 petitioners who do not have a current visa number available.
Generally, we will issue a deferred action determination together with our decision on Form I-360. However, if we need additional information, which may include requesting biometrics, to make the deferred action determination, we may issue a decision on Form I-360 first.
If my Form I-360 was approved or pending before the new deferred action process, how do I apply for deferred action?
We will automatically make initial deferred action determinations for approved SIJs who cannot apply for adjustment of status solely because an immigrant visa number is not immediately available. You do not need to submit a separate request for deferred action; if you do, we will not accept it. We will consider deferred action on a case-by-case basis to determine whether you warrant a favorable decision.
Do I need to submit biometric information to receive an SIJ deferred action determination?
We generally do not require a separate biometrics submission to grant SIJ deferred action. However, we complete background and security checks when we adjudicate an SIJ petition and, depending on the facts and circumstances of your case, we may ask you to submit biometrics or to appear for an interview before we grant deferred action. See 8 CFR 103.2(b)(9).
Are there factors you consider for deferred action that are not already part of the Form I-360 adjudication?
Deferred action is a temporary, favorable exercise of discretion that gives some cases lower priority for immigration enforcement action. We examine the totality of the circumstances in an individual case and weigh positive and negative factors to determine whether to grant deferred action.
If you have been approved for SIJ classification, that is a strong positive factor toward granting deferred action. If background and security checks indicate you may be inadmissible under INA 212(a) on a ground that cannot be waived and that would make you ineligible for SIJ-based adjustment of status, that would generally be a strong negative factor against granting deferred action.
We may decide, on a case-by-case basis, that other adverse factors weigh against granting deferred action, such as serious unresolved criminal charges that may result in an unwaivable inadmissibility ground that would render you ineligible for SIJ-based adjustment of status. We may also grant deferred action despite these concerns if case-specific circumstances warrant it.
What evidence will you rely on when considering deferred action?
We will weigh positive and negative factors on a case-by-case basis to determine whether to grant deferred action. An approved SIJ petition is a particularly strong positive discretionary factor.
We will not issue a request for evidence (RFE) or notice of intent to deny (NOID) in the context of SIJ deferred action determinations.
How do you handle deferred action if I am in removal proceedings, and I have SIJ classification? Many SIJs have approved Form I-360 petitions and are still in removal proceedings. Some file Form I-485 before their priority date is current because certain judges allow or require it. And some file Form I-485 while their priority date is current, but the date retrogresses.
- Will you grant deferred action if I am in removal proceedings with an approved SIJ Form I-360?
Yes, we may grant deferred action to SIJ-classified individuals without a current visa number who are in removal proceedings.
- I am in removal proceedings. Will you consider prioritizing my case?
We will consider deferred action for SIJ-classified noncitizens as quickly and efficiently as possible. We do not presently have a way to expedite review if an individual is in removal proceedings.
- I am in removal proceedings and filed Form I-485. Will you still grant me deferred action?
If you are an SIJ-classified noncitizen in removal proceedings, and you have a Form I-485 pending with the U.S. Department of Justice, Executive Office of Immigration Review (EOIR), we will only consider deferred action if a visa number in the EB-4 category is not currently available. Note that if you have a pending Form I-485, you are eligible for work authorization under 8 C.F.R. 274.12(c)(9).
- My removal proceedings were terminated in immigration court. Will you still consider me for deferred action?
Yes, if your removal proceedings were terminated in immigration court, we may still consider you for SIJ deferred action, if you are otherwise eligible.
If I submitted a Form I-485 application, but you rejected my application due to a change in the visa bulletin, will you still consider me for deferred action?
A12. If you do not have an approved Form I-485 and an immigrant visa number is not available, we may consider you for SIJ deferred action. A rejected Form I-485 will not affect our consideration of SIJ deferred action.
Do I need to request you renew my SIJ deferred action, or will you automatically consider renewing it?
We may consider a request to renew your SIJ deferred action if you remain ineligible to apply for adjustment of status because an immigrant visa number is not immediately available. You may submit a deferred action renewal request to us 150 days before your deferred action expires. Renewal requests are subject to the same guidance in the USCIS Policy Manual regarding eligibility and adjudication for an initial grant of SIJ deferred action.
We will soon publish more information regarding renewals for SIJ deferred action.
The Policy Manual says USCIS authorizes deferred action for 4 years. Will all grants of deferred action to SIJ recipients be for 4 years? Will employment authorization based on SIJ deferred action also be valid for 4 years?
We will grant deferred action for up to 4 years. If you receive deferred action, you may obtain employment authorization for the period of deferred action. This means that if you receive employment authorization following a grant of deferred action, your employment authorization will expire the same day your deferred action expires.
What types of detention qualify as “immigration detention,” as referenced in footnote 29 of the SIJ Deferred Action Policy Manual Update?
Immigration detention as referenced in footnote 29 of Volume 6, Part J, Chapter 4 of the USCIS Policy Manual refers to detention with U.S. Immigration and Customs Enforcement (ICE). It does not include custody under the U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR) for unaccompanied minors.
If I receive deferred action under this policy, will I be eligible for advance parole?
No, SIJ-classified noncitizens with deferred action under this policy are not eligible for advance parole.
If you deny or terminate my deferred action, can I ask you to reconsider? If I believe USCIS made a mistake in my deferred action adjudication, what is the best way to ask USCIS to review it?
Because deferred action is by its nature an exercise of prosecutorial discretion and not a benefit, the agency does not have a process for you to file an administrative appeal or a motion to reopen or to reconsider. However, you may contact the USCIS Contact Center at 800-375-5283 if you have a question about your deferred action determination.
When should I submit a status inquiry for the deferred action adjudication on a case that already has an approved Form I-360? Can I submit this inquiry online?
When SIJ-classified noncitizens have a Notice to Appear (NTA) that has not been filed with immigration court, do you cancel that NTA after you approve their Form I-360 and grant deferred action?
We do not cancel or terminate outstanding NTAs after we approve an SIJ-based Form I-360 and grant deferred action. Entities other than USCIS, such as ICE or Customs and Border Protection (CBP), may issue an NTA, and after the NTA is filed with the immigration court at the EOIR, removal proceedings are generally initiated. We do not have the authority to cancel NTAs that are filed with EOIR. If you have an NTA issued by ICE or CBP, you should contact those agencies directly for more information on NTA issuance and cancellation.
Employment Authorization Documents (EADs) Based on SIJ Deferred Action
Is there a fee to file a Form I-765, Application for Employment Authorization, based on deferred action through SIJ?
If you file Form I-765, you must include the correct fee or a Form I-912, Request for Fee Waiver. To request a fee waiver for Form I-765 when seeking an EAD based on SIJ deferred action, follow the same instructions for a fee waiver for an SIJ-based Form I-485.
This means that when you request a fee waiver, you should include evidence that you were approved or filed for SIJ classification (for example, Form I-360 or a copy of Form I-797, Notice of Action, for Form I-360) together with your Form I-912, Request for Fee Waiver.
Can I submit my Form I-765 application together with my Form I-360 petition?
No. You can only file Form I-765 after you have received deferred action.
How will USCIS determine “economic necessity” for work authorization under category (c)(14) based on SIJ deferred action? Will you prevent children too young to work from obtaining EADs?
USCIS will presume economic necessity based on an approved SIJ-based Form I-360. USCIS does not require Form I-765WS, Worksheet, to determine economic necessity.
There is no age requirement to file Form I-765; even those too young to work may seek an EAD. An EAD may serve as a form of government-issued identification, in addition to granting authorization to work lawfully.
Can I submit Form I-765 if I see a grant of deferred action on USCIS Case Status Online, even if I have not received the notice in the mail?
If USCIS grants my deferred action, how will you notify me? In writing?
If a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, is on file for a Form I-360, we will send a courtesy notice to the attorney or accredited representative.
What is the best way to make sure you have my updated address?
U.S. Department of Homeland Security
Citizenship and Immigration Services
Attn: Change of Address
1344 Pleasants Drive
Harrisonburg, VA 22801
I filed my SIJ-based Form I-485 with USCIS, but it was administratively closed for lack of jurisdiction because I was still in removal proceedings before the immigration court. The immigration court has now dismissed or terminated my proceedings. How do I reopen my Form I-485 with USCIS?
Following termination of removal proceedings, you may call the USCIS Contact Center to request reopening of a Form I-485 that was filed with USCIS. (The receipt number will start with “MSC.”) The Contact Center will notify the adjudicating office, which will issue a Request for Evidence to obtain a copy of the order terminating removal proceedings, a copy of the Form I-485, and supporting documents, or other information, as required.
SIJ Final Rule
Given the recission of automatic revocation if an applicant is married after Form I-360 application was approved, are there any consequences related to Form I-360 approval if I get married?
If you get married before your Form I-360 is approved, you are ineligible for SIJ classification under 8 CFR §204.11(b)(2), which provides that a petitioner must be “unmarried at the time of filing and adjudication.” To be eligible for SIJ classification, you must remain unmarried at the time of filing and adjudication of the Form I-360. However, if you marry after we approve your Form I-360, but before you adjust status to lawful permanent resident, we will no longer automatically revoke your Form I-360 petition.
Under the final rule, if my priority date is not current, and I got married before the rule became final, can I adjust status when my priority date is current, even though I married before this rule was published?
You may apply for SIJ-based adjustment of status if your SIJ approval has not been revoked and you are otherwise eligible.
Under the new SIJ regulations, if I married after you approved my Form I-360 petition, I am still eligible to apply to adjust status. If I get married after I file Form I-485, and my Form I-485 was pending before April 7, 2022, when the SIJ rule went into effect, will you still adjudicate my pending Form I-485 under the new regulations?
Yes. If your SIJ approval has not been revoked and you are otherwise eligible, we will adjudicate your pending Form I-485 under the new regulations.
Do I have to keep the guardianship or custodial relationship with my guardian or custodial parent during the entire process, including Form I-485 processing?
If you leave a court-ordered placement, that will not, by itself, affect your SIJ eligibility. However, in general, you must remain under the jurisdiction of the juvenile court at the time of the filing and adjudication of your SIJ-based Form I-360, with some exceptions. If you are no longer under the jurisdiction of the juvenile court for a reason related to your underlying eligibility for SIJ classification, you may no longer be eligible for SIJ classification. This may include cases in which you are no longer under the jurisdiction of the court because:
- The court vacated or terminated its determinations that made you eligible because of subsequent evidence or information that invalidated the determinations; or
- The court reunited you with the parent the court previously said you could not reunite with because of abuse, neglect, abandonment, or a similar basis under state law.
USCIS will not re-adjudicate Form I-360 when we adjudicate Form I-485. However, an approved Form I-360 is automatically revoked as of the date of the approval if either of the following circumstances occur before we issue a decision on Form I-485:
- Reunification of the petitioner with 1 or both parents by virtue of a juvenile court order, where a juvenile court previously said reunification with that parent, or both parents, was not viable due to abuse, neglect, abandonment, or a similar basis under state law; or
- Reversal by the juvenile court of the determination that it would not be in the petitioner’s best interest to be returned to the petitioner’s, or the petitioner’s parents’, country of nationality or last habitual residence.
Does USCIS require a Form I-601 waiver for SIJs with prior removal orders?
If USCIS has jurisdiction over your application for adjustment of status because you are an arriving alien, and there is an unexecuted final removal order, USCIS will request a Form I-601, Application for Waiver of Inadmissibility, for an inadmissibility ground that may be waived under INA 245(h), relating to inadmissibility grounds that apply to SIJs.