A third-party may be granted custody of a foreign juvenile illegally living in the United States if the juvenile has “special immigrant” status under the Immigration and Nationality Act (INA). Essentially, the statute formalizes a legal status for the juvenile and ensures a level of protection from deportation. The INA provides various circumstances under which an alien may be eligible for a “special immigrant” status. An undocumented juvenile may be eligible if the juvenile cannot be reunited with a safe parent. In other words, a determination must be made that reunification with neither parent is viable because of abuse, neglect, or abandonment.

Many parents living abroad seek a better life for their child in the United States where opportunity is vast. They make the difficult decision to send their child to a third-party living in the United States while staying behind in their home country. However, that third-party will be denied custody of the undocumented juvenile if at least one parent is viable for reunification. In those circumstances, the juvenile does not fall within the protection of the INA and deportation remains a possibility.

According to the INA, reunification with a parent will not be viable if it endangers the welfare of the child as evidenced by a history of abuse, neglect, or abandonment. In that case the juvenile may be eligible for “special immigrant” status based upon the court’s best interest analysis of the facts.

A New Jersey family court recently held that a parent who is simply unable to provide the basic necessities to a child due to lack of financial ability is not abusive or neglectful. Also, a sending child to the United States in the hopes of a better future does not automatically constitute abandonment.

Assisting an undocumented juvenile in obtaining lawful permanent residency within the United States is important to many foreign parents and third-parties. However, the INA limits the assistance a third-party can provide where reunification with either parent is viable.

Tanya N. Helfand, Esq. concentrates in Family Law, she is a Certified Matrimonial Attorney and mediator. At Helfand and Associates, Diana Strlovski handles immigration matters. The firm welcomes your questions and inquiries at [email protected]. Everything is confidential. This article is not legal advice. Please consult an attorney.