Can Undocumented Immigrants Become Foster Parents in Your State? It Depends.

Though many states are facing a renewed pressure to recruit caregivers for foster children, few jurisdictions have created licensing requirements to accommodate undocumented immigrants seeking to become foster parents.

According to a recent brief from the American Bar Association Center on Children and the Law, 20 states include immigration requirements before caregivers can become licensed as foster parents. Eleven other states have licensing standards that represent indirect obstacles for undocumented immigrants in the child welfare system. 

While federal law provides some guidance and funding to assist in the placement of foster youth, licensing standards are determined at the state level.

All states require that potential caregivers, whether licensed or unlicensed, go through background checks, necessitating providing some form of government-issued identification, such as a state-issued driver’s license or a Social Security number.

For undocumented immigrants, providing these forms of identification is often difficult, or impossible.

Two states, California and Indiana, have established alternative means to processing background checks for licensure that include accepting foreign passports.

For California, home to more than two million undocumented immigrants, a 2012 state law allows California to maximize its ability to recruit foster parents, especially family members or close friends of the child. Child welfare agencies are allowed to use identification from a foreign consulate or a foreign passport for running background checks for relative caregivers.

“It is in the best interest of children to keep them with family as much as we can,” said Angela Karimyan, who works to recruit caregivers with the Los Angeles County Department of Children and Family Services (DCFS). “They will be more likely to reflect the values, language, and heritage of the foster youth versus thrusting a child into a completely new situation that has the potential to re-traumatize.”

As California has continued to move away from group homes, the need for foster families has risen over the last decade.

California is not the only state facing foster family shortages.

As of July 25, Oklahoma had 9,020 children in care and is struggling to find suitable placements for many of them, according to Casey White, communications manager for the Oklahoma Department of Human Services,

“We do not have enough foster homes for all of these kids and to meet all of their needs,” White said.

In 2015, Oklahoma attempted to tackle the issue of providing alternative methods for processing the background checks for potential foster care parents “who lack a Social Security number or other tax identification number.”

However, the state has not implemented the proposed alternative background checks, such as allowing undocumented immigrants the ability to use passports from their native country. According to White, the process has been sidelined by the agency’s work on the Pinnacle Plan, a court-mandated plan to improve the state’s foster care system as a result of a class-action lawsuit.

When it comes to undocumented families who are seeking to become kinship caregivers for children, Oklahoma, like many other states, still requires social workers to determine lawful residency, and offers some flexibility, but no payment, to those family members.

“Undocumented families cannot be paid foster parent contractors for us, so we also have to ensure these families are able to support the child while in an unpaid kinship status,” said White. “In short, we look to find ways to support these children, while still maintaining federal compliance.”

Of the 20 states (including Oklahoma) that have explicit foster care licensing standards that require citizenship or documented immigration status, three – Massachusetts, New Jersey and Oregon – allow relatives to avoid the immigration status licensing standard.

Conversely, Arizona, Michigan and Mississippi explicitly state that the immigration status requirement may not be waived under any circumstance, including kin.

However, Michigan does make an important allowance for undocumented relative caregivers in some cases.

“In exceptional circumstances, a waiver may be requested for a relative caregiver to forgo licensure when it is determined to be in the child’s best interest to be placed or remain with an unlicensed relative,” according to the policies of the Michigan Department of Health and Human Services.

Several states that prohibited the use of undocumented immigrants as caregivers pointed to federal compliance as the reasoning behind their policies.

Odessa Krech with the Tennessee Department of Children’s Services cited Title IV-E Foster Care as the central factor behind the state’s prohibition of licensing for undocumented foster parents.

“It’s not our decision whether or not illegal immigrants can be foster care parents. It’s a federal decision,” Krech said. “We don’t want to lose any federal funding.”

Title IV-E is a major source of federal funding for child welfare agencies. There are clear parameters in how the funds can be used, including payments for the daily care and supervision of eligible children, training of staff and foster care providers, recruitment costs for foster care families and operations for state-wide data collection.

In California, an interpretation of Title IV-E policies means that those funds are spent on the training and recruitment of caregivers, no matter the immigration status of the family, according to Karimyan.

But in Tennessee, there are strict limitations in how Title IV-E are spent when it comes to undocumented caregivers.

“Undocumented families can take custody of undocumented children,” Krech said. “Courts would have to make the decision if they could remain there. But these families would not be eligible to receive the same financial assistance from us [Children’s Services]. But we do want kids to be with their families.”

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