This legislation is fairly unique in that it requires the state Court to get involved and examine the eligibility of the these foreign juveniles before they can apply to the federal program. To petition for SIJ you must have a state court order that contains certain findings, USCIS uses to determine your status. The state court may be called “juvenile court”, “family court”, “orphan’s court”, or some other name, depending on which state it is in. The court must have the authority under state law to decide on the custody and care of children.
A state court in the United States must decide that you are a dependent of the court or to legally place you with a state agency, a private agency, or a private person and It is not in your best interests to return to your home country (or the country you last lived in) and you cannot be reunited with a parent because of ANY of the following: Abuse, Abandonment, Neglect, Similar reason under state law.
To be eligible for SIJ status you must be under 21 years old on the filing date of the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. In addition, Your state court order must be in effect on the filing date of the Form I-360 and when USCIS makes a decision on your application, unless you “aged out” of the state court’s jurisdiction due to no fault of your own and finally you cannot be married, both when you file your application and when USCIS makes a decision on your application.
You must be inside the United States at the time of filing the Form I-360.
If you are in the legal custody of the U.S. Department of Health and Human Services (HHS), you must request permission from HHS for the court to legally place you somewhere else. Also you do not need to request permission from HHS if the state court does not place you somewhere else.
In the Guardianship of Josephine Penate the The Supreme Judicial Court heard a case involving SIJ status argument. The Court ruled that it was imperative that the lower family and probate court make specific findings of fact to assist the Immigration Court when it comes time to evaluate the SIJ status. The family trial courts possess the special knowledge of the “child welfare and abuse” which are elements necessary for the Immigration court to use when deciding the status of an immigrant juvenile child from another country. What the state court can do is determine the best interest analysis and make factual determinations for the eligibility requirements to SIJ status.
The family trial court must determine if reunification is viable for the juvenile immigrant even if it is not possible.