Immigration and Foster Care: What You Need to Know

The number one tip is: Do not wait until right before the youth turns 18. Work with them to resolve their legal issues well before then. The following Q&A covers the basics.

Immigration and Foster Care: What You Need to Know

Keily Orellana

Having legal immigration status is an important part of planning for the future. When youth age out of foster care with no status, they are stuck. They probably won’t be able to get a job or qualify for other services to help them, and they can be deported.

Undocumented youth do have rights. To find out more, I interviewed Katherine Fleet, a staff attorney in the Immigration Law Unit of the Legal Aid Society.

It’s important to remember, though, that every case is different. The answers here are for informational purposes and not the same as legal advice. If you have questions about your own immigration status, you should contact an immigration lawyer who can look at your circumstances and provide the appropriate advice for you.

Q: What does it mean to be undocumented?

A: Being undocumented means you don’t have documents from the U.S. government saying that you have legal status—basically, you don’t have official permission to be here.

Q: So if you’re an undocumented immigrant in foster care, does that mean your rights are different from other kids in foster care?

A: Here in New York City, Children’s Services (ACS) will accept any eligible youth into foster care, regardless of immigration status. While in foster care, every child should get medical care, education programs, housing, and help planning for the future.

However, if you’re undocumented you don’t have the right to work, so you won’t have access to most employment programs. Paying for college is also difficult because you can’t get federal financial aid.

Q: Can you be deported if you are in foster care and don’t have legal status?

A: Yes. But you have the right to appear before a judge to make the case for why you shouldn’t be deported, and being in foster care may give you some extra protections.

Q: Can having a child in the U.S. help you become legal?

A: No. A child can only help its parent get papers if the child is a U.S. citizen and is over 21. And even then there are a lot of other requirements that make it very difficult.

Q: What should you do if you’re in the U.S. illegally?

A: Talk to your law guardian and/or an immigration lawyer as soon as you can. A lawyer may be able to help you get a green card, which will give you legal status and can eventually lead to citizenship. (See more on getting a green card below.)

In the meantime, stay out of trouble with the law. If you commit a crime, that will make it harder to get legal status in the future.

If you’re charged with a crime, make sure your lawyer knows your status. If you’re questioned by immigration, it’s probably best not to sign papers or answer questions until you speak to a lawyer. Also, it’s probably best not to travel outside the U.S.; once you leave, you may not be able to come back legally.

Definitely don’t lie and say you’re a U.S. citizen when you’re not. This could hurt your chances of ever getting a green card, and it might get you deported.

Q: What’s a green card?

A: A green card lets you stay in the U.S. as a “lawful permanent resident.” Being a permanent resident allows you to work, study, and come and go from the U.S. You can still be deported if you break the rules. But getting a green card can eventually lead to citizenship.

Q: How do you apply for a green card?

A: For youth in foster care, the most common ways are through Special Immigrant Juvenile Status or the U visa (see below), which is for victims of certain crimes. There are also other ways, and it’s important to consult with a lawyer to figure out your options.

If you’re in foster care, your foster care agency should refer you to an immigration expert. It’s important to take care of this well before you age out. But don’t contact immigration authorities or make an application on your own without first getting guidance from a lawyer; sometimes, contacting immigration can lead to being deported.

Q: What is Special Immigrant Juvenile Status (SIJS)?

A: SIJS is a way for foster care youth (and certain other youth), to stay in the country, work, and eventually get a green card.

Generally, to qualify for SIJS, you have to be separated from at least one of your parents due to problems like abuse, neglect, or abandonment. You have to be involved with a court (if you’re in foster care, you probably are already) and the judge has to say it’s not best for you to go back to the country you’re from. And you have to be under 21.

If you’re in foster care and are undocumented, talk to your law guardian to find out if you qualify for SIJS.

Q: What is a U visa?

A: A U visa is a temporary status that can lead to a green card later on. It’s for people who have been victims of certain crimes, like domestic violence, rape, torture, or trafficking (tricking or forcing someone to work for little or no pay, often in dangerous jobs like prostitution or hard labor), and who help law enforcement with investigations or prosecutions. Many youth in foster care qualify because they are domestic violence victims.

Q: What can you do if you feel like you’re not getting support with your case?

A: You’ve got to be persistent. Start with the lawyer representing you in court (your law guardian). Ask them to put you in touch with an immigration lawyer. If your lawyer doesn’t help you, ask your caseworker or his/her supervisor. If you don’t want to give them information about your immigration status, just say you want general information about immigration and make sure they send you to talk to someone. If you feel like people aren’t doing what they’re supposed to, go to your family court hearings and tell the judge. And check out the resources below.

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