CPS July 2013
Most child protection services, including investigative services, family-based safety services and reunification services can be provided without regard to a parent’s, child’s, or youth’s immigration status.
If DFPS obtains conservatorship of a child or youth, identifying the child’s or youth’s citizenship or immigration status is important for many reasons, including:
• federal law requires that child welfare agencies verify the citizenship and immigration status of children in foster care;
• an international treaty requires that DFPS give notice to the foreign consulate when a person who is not a U.S. citizen is taken into custody (see 6717 Working With the Foreign Consulate);
• a child or youth’s immigration status impacts eligibility for funding; and
• failure to obtain immigration services for a child or youth in a timely manner can delay permanency.
To contact DFPS staff knowledgeable about these issues, see immigration specialists, regional attorneys, and border liaisons: For a quick reference guide, see Form 2013 Questions and Procedures for Working With Foreign Born Children in Foster Care.
CPS July 2013
DFPS uses the following four categories to identify children and youth who need citizenship and immigration assistance:
U.S. Citizen: The most common proofs of U.S. citizenship are a U.S. birth certificate, a naturalization certificate, or a citizenship certificate. Once a child or youth’s U.S. citizenship is confirmed, there is no further work to be done with respect to citizenship and immigration.
Permanent Resident: With lawful permanent resident (LPR) status, a child or youth can live and work in the U.S. indefinitely (barring certain criminal activity). At age 18, after five years as a LPR (or three years in some cases) an eligible LPR can apply to become a naturalized U.S. citizen. DFPS monitors children and youth who are in foster care with LPR status to renew expired cards and assess eligibility for naturalization.
Other Qualified Alien: This category is for refugees, persons granted political asylum, and a few others who were legally admitted but do not have LPR status yet. DFPS assesses these cases and assists in filing an application for LPR status, if appropriate.
Undetermined Status: All children and youth who do not fit in the first three categories belong in this category. Some children and youth in this category are undocumented, some are U.S. citizens but must apply for documentation, and others have complicated cases that require additional research. For those who are undocumented, the key issue is determining eligibility for Special Immigrant Juvenile Status (SIJS), which is an avenue for obtaining LPR status. See 6714 Opportunities for Undocumented Foster Children.
DFPS immigration specialists track cases of all children and youth in foster care who are not U.S. citizens (or lack proof of U.S. citizenship). Regional attorneys, or in some instances, private attorneys appointed by the family court, work with immigration specialists and caseworkers to assist children and youth to apply for permanent resident status and citizenship and to resolve other immigration issues.
CPS July 2013
Correctly identifying a child or youth’s citizenship or immigration status and promptly pursuing available options promotes permanency. Consider the following:
• An undocumented child or youth is unable to work, obtain most student loans or other governmental benefits, and is subject to removal (deportation) if apprehended by immigration officials.
• Special Immigration Juvenile Status (SIJS) may be the only chance many undocumented children and youth have to obtain the status of permanent resident.
• By obtaining permanent resident status before adoption, a child or youth who is adopted while under age 16 may qualify for automatic citizenship when the adoption is consummated.
• A new permanent resident must wait five years to access most governmental benefits (including TANF and food stamps), so the sooner the five-year period begins, the sooner additional resources will be available.
• In most cases a youth must be a permanent resident for five years and be age 18 to apply for naturalization, so the sooner the five-year period begins, the sooner a youth can obtain U.S. citizenship. U.S. citizenship removes all immigration-related restrictions on benefits. This is particularly important for youth with disabilities who may need SSI benefits.
CPS July 2013
Special Immigrant Juvenile Status
Special Immigrant Juvenile Status (SIJS) is a federal law that allows an eligible undocumented foster child to apply for permanent resident status (also known as a green card).
Most children will not have another opportunity to obtain permanent resident status which makes this an extremely important opportunity. Caseworkers should be familiar with the eligibility requirements in order to identify potentially eligible children and youth on their caseload. Eligibility for SIJS requires that the family court find and issue an order that:
• the child is dependent on the family court;
• reunification with one or both parents is not viable as a result of abuse, neglect, or abandonment or similar basis under state law; and
• it is not the child or youth’s best interest to be returned to the child’s or youth’s or parent’s country of nationality or last habitual residence.
Every child and youth in DFPS conservatorship is dependent on the family court. The best interest finding depends on the facts in each case, such as a child or youth’s language ability, family, social, and cultural ties in the other country and any other special factors that apply.
The status of reunification usually determines when a child or youth can apply for SIJS. The earliest that an undocumented child or youth can qualify for SIJS is when the court can find that he or she cannot reunify with at least one parent as a result of abuse, neglect, or abandonment. The caseworker must communicate with the immigration specialist when reunification with at least one parent is no longer considered possible.
Similarly, the caseworker must let the immigration specialist know whether an undocumented child or youth has any arrests, juvenile adjudications, or criminal convictions, any substance abuse issues, severe mental health issues, or prior deportations.
None of the above issues necessarily make a child or youth ineligible to apply for Special Immigrant Juvenile Status, but each is relevant to eligibility. Marriage makes an SIJS youth ineligible, so any undocumented youth considering marriage should be warned that this eliminates SIJS as an option. See the immigration specialist contact information.
CPS July 2013
The caseworker’s responsibility for ensuring that every eligible child or youth receives all appropriate citizenship and immigration relief depends on the child’s status and the stage of the case. Duties include:
• finding out where a child or youth was born and obtaining birth records;
• for children and youth not born in the U.S., interviewing parents and other family members about citizenship and immigration status, and forwarding Basic Immigration Information Form 6600 with copies of a child’s or youth’s travel and immigration documents to the immigration specialist;
• responding to requests for information and documents from the immigration specialist;
• supporting the application process for Special Immigrant Juvenile Status, naturalization or other benefits by obtaining photographs, medical exams and other supporting documents as directed by the immigration specialist;
• bringing the child or youth to appointments and interviews;
• promptly communicating any change in the child’s or youth’s circumstances (reunification with one or both parents, arrests, hospitalization, or change in the permanency plan) to the immigration specialist;
• immediately forwarding any notice, letter, or request for information from immigration authorities to the immigration specialist and the regional attorney.
CPS July 2013
Functions of the former Immigration and Nationality Service (INS) are now the responsibility of the Department of Homeland Security (DHS). This includes:
• U.S. Citizenship and Immigration Services (CIS)
• Immigration and Customs Enforcement (ICE)
• Customs and Border Protection (CBP)
Caseworkers should rely on immigration specialists and regional attorneys to handle communications with immigration authorities. Any questions about communications with immigration authorities should be referred to the regional attorney.
CPS December 2013
DFPS works cooperatively with representatives of the foreign consulate when a foreign-born child is in DFPS conservatorship. DFPS is legally required to give notice to the foreign consul when a foreign-born child who is not a U.S. citizen comes into DFPS conservatorship. See 5831 Notice to the Foreign Consulate Required.
CPS July 2013
Federal law prohibits inducing undocumented persons to enter the U.S. illegally, or concealing, harboring, or transporting such persons as a means of furthering a person’s illegal presence.
DFPS offers a wide array of services designed to prevent child abuse, promote safe and stable families, and provide permanency for children and youth. The effective delivery of child protection services sometimes requires a caseworker to transport children and youth and family members. Whatever the child’s, youth’s, or parent’s citizenship or immigration status, any transportation by DFPS staff must be limited to what is necessary to serve a child protection goal.
If a caseworker has reason to believe a child or youth or a parent is not authorized to be in this country, and transportation is necessary to support delivery of child protective services, staff:
• except in the case of removal of a child or youth, look first to relatives and friends who can provide transportation, or to public transportation, and consider DFPS to be the last resort for transportation;
• never take any action to avoid detection or evade immigration authorities when transporting clients;
• request that the family court specifically order DFPS to provide transportation, if transportation will be an ongoing part of services;
• carry state-issued identification and a copy of the court order showing DFPS’s relationship to the children or youth or the parents;
• carry copies of the filing receipt and the A# (case number immigration authorities use) assigned to the case, if an application for Special Immigrant Juvenile Status (SIJS) or other immigration relief has been filed; and
• Never cross the U.S. – Mexico border with an undocumented client.
In border areas, staff would be well advised to carry their own proof of U.S. citizenship or lawful permanent resident status.
CPS July 2013
There are times when DFPS issues work-related travel restrictions to certain countries when there is a concern for staff safety. These restrictions are based on travel warnings issued by the United States Department of State.
Before traveling to Mexico or any other foreign country, staff must check with management to determine whether there are any current travel restrictions.
When a travel restriction is in place for Mexico, staff are permitted to meet U.S. consulate staff or representatives from Mexico’s social service agency, Desarollo Integral de la Familia (DIF), at the border, if necessary in the course of repatriation cases and in similar circumstances.
CPS July 2013
If a parent lives outside the U.S., the service plan should reflect the services available in the parent’s community. A service plan should not require a parent to enter the U.S. to participate in a service, unless a parent has the legal ability to do so. As with any parent, the service plan should focus on specific issues the parent must address in order to safely care for the child in question.
To find out about available services in Mexico, caseworkers should contact the DFPS border liaison staff or the DFPS immigration specialists who work closely with Mexican consular staff.
For other countries, information about available social services may be available on the Internet (search for government agencies for child protection, substance abuse and related issues) from foreign consul representatives, or the International Social Services office. DFPS immigration specialists are also available to assist in this process.
CPS July 2013
If a parent in a foreign country seeks custody of a child or youth in DFPS conservatorship, DFPS has the same burden as in any case to show evidence of unfitness to justify not placing a child or youth with the noncustodial parent.
A child or youth can be placed with a parent or kinship caregiver in a foreign country, whether the child will be returning to his or her country of origin (repatriation) or will be placed for the first time in a foreign country. The placement decision is made based on the needs of the individual child or youth, the ability of the proposed caregiver to meet the child or youth’s needs and what option will best serve permanency.
Special issues to consider include all of the following:
• The safety of a placement in a foreign country must be assessed based on supervision available from local child protection authorities, without DFPS involvement.
• Court approval is required for out-of-country travel by a foster child (Texas Family Code §264.122).
• Once a child or youth is placed in a foreign country, DFPS has no legal authority to act.
• If the child or youth is not a U.S. citizen, staff consult with the regional attorney to assess immigration consequences of residing permanently outside the U.S.
CPS July 2013
If a child’s or youth’s parent, relative, or other potential caregiver resides in a foreign country, the caseworker may, with supervisory approval, request a home study from that country. If a child or youth has special needs or there are any specific concerns about the placement, these should be communicated with the home study request.
For home studies in Mexico, DFPS border liaison staff can forward a request to the proper party in Mexico. See Border Liaisons for a list of border liaison staff.
For home studies in other countries, the foreign consul’s office may be able to identify resources. Contact an immigration specialist to obtain contact information for a foreign consul’s office. See the International Social Services office for additional resources and contact information.
See Form 6582 Sample Letter to Request a Home Study in a Foreign Country.
CPS July 2013
Before placing a child in a foreign country, the caseworker must:
• obtain a favorable home study;
• inform all parties, court, the child’s or youth’s guardian and attorney ad litem, CASA representative, the foster family or facility, and the consulate;
• set up any necessary monitoring and safeguards with child protection authorities in the area where the child or youth will reside;
• obtain a certified copy of the court order authorizing the placement to provide to the child’s caregiver; and
• verify the child or youth has necessary travel documents for entry into the placement country (and copies of U.S. citizenship or birth records, if applicable).
Once the child is placed, advise the attorney for DFPS and request dismissal of the legal case.
CPS July 2013
Immigration law allows certain victims of crime to apply for a visa, if the law enforcement or prosecuting authority certifies the applicant’s status as a victim.
By regulation, child protection services are authorized to certify “U” visas. The “U” designation comes from the United States Code that defines this type of immigrant visa.
All requests for “U” visa certifications should be sent to State Office, MC-W157, Attn: CPS immigration program specialist. Only persons designated by the DFPS commissioner are authorized to sign a “U” visa certification.