Revised October 4, 2017
A very common question that undocumented immigrants have for me is this: “My US Citizen child has finally turned 21! Can you help me become a legal resident?”
In the immigrant community, is passed along from person to person like rumors but often this legal analysis is not correct or is incomplete.
The answer really depends on the situation, but a summary answer is: Yes, a US Citizen who is 21 years old or above can submit a petition for his or her mother or father. The petition may be adjudicated, and even approved. However, the parent may not be able to finalize the process to become a lawful permanent resident.
A US Citizen who is of Age Can Petition for his or her parent
The current instructions for the I-130 Petition are clear. “[A US Citizen] may file a petition for … Your mother or father”. But remember, a Petition only proves that the petitioner (in this case, the child) is a US Citizen. It does not mean that the parent will be approved to obtain his or green card.
A parent of a citizen must still meet certain requirements in order to get a green card.
Over the past weekend, I was asked by parents to help them get their green card because their child was finally over 21. They had learned that their child could petition for them once they turned 21 (although some still thought the age was 18 - another bad rumor flying around the immigrant community). But they confused being able to be petitioned with being eligible for a greencard.
The instructions on the green card application (Form I-485) state, that with some exceptions, “you are not eligible for adjustment of status in the United States if … you were not admitted or paroled following inspection by an immigration officer.” This means that if the parent did not enter legally, he or she is NOT eligible to adjust status in the United States. He or she must leave the United States, but this may not be a good idea.
On the one hand, if an individual parent entered legally into the U.S., with a border crossing card, or other visa, and overstayed it, and did not leave, then there is a lawful entry. When the child is 21 years old, he or she can apply for his parent, and hte parent may be able to adjust status while in the United States, and become a lawful permanent resident.
If an undocumented person leaves the United States, he or she may be disqualified from coming back into the United States for ten years! Other bars may also apply. An attorney should be consulted before an undocumented person leaves the United States.
There is generally several waivers available that may allow a person subject to the ten year bar or other bars. However a waiver for unlawful presence is generally not available based on hardship to a son or daughter. This means that if the undocumented parent either applies for a provisional waiver based on hardship to the son or daughter, or travels to the foreign consulate seeking the waiver based on the son or daughter, the waiver cannot be granted. The parent cannot get a green card based on hardship to their child.
Exceptions
There are a few exceptions and in order see if you qualify, you need to see an immigration attorney. An example of exceptions are 245(i) protected parents, and parents who may have a spouse or parent themselves who is a resident or citizen of the United States.
Conclusion
Immigration law is complicated. Many rumors fly around and people have misconceptions about the law that they rely on for many years. Before you spend thousands of dollars on an immigration process or before you leave the U.S. be sure to visit an attorney knowledgeable about these issues. The attorneys at Keen Law Offices are familiar with these rules. Call for an appointment today.
Comments
Abv Reply
Posted Sep 05, 2020 at 01:45:13
But if Indian Parents on H1 and H4 gave birth on US soil so Son can become US citizen, after giving birth the Child will grow in India and Comes back at 21 to USA….. So is it very easy, clear and free entry for Child
Jose herrera Reply
Posted Jan 31, 2021 at 06:18:47
Hi my name is Jose Luis Herrera and my phone number is 3235346173. I am a United States citizen I am now 21. I always wanted to get my mom a green card and now that I’m the age of 21 I was wondering how can I start the process for my mom green card because I really want to bless her and I want my mom to see her parents again it’s been a while
Edwards Okoruwa Reply
Posted May 11, 2021 at 09:13:00
Need to speak to an attorney about my status. Email m or send a no to call . Thanks
Santiago Reply
Posted May 24, 2021 at 21:05:02
Thank you for the info 💯
Keith Frazer Reply
Posted Apr 06, 2022 at 09:03:45
How can I help my close friend become an American citizen. She’s over 50 and I’m 72. Or what can I do to bond her a legal stay. We also have a 16 year old daughter
Christopher Keen Reply
Posted Apr 13, 2022 at 14:45:54
This is a great question. It sounds like there are some important facts in your situation. A consultation with an attorney will give you a clear idea of how to proceed. Call or text our office to schedule a consultation.
Sukhjinder Reply
Posted May 03, 2022 at 18:53:42
Hi sir,Me and my husband comes in unites states used with different names.our 21 year old son is USA citizen,can he applied our legally status or no
Chris Reply
Posted Jun 29, 2022 at 01:53:48
Thanks very much for this post. Great content you have here. I have learned so much from one post.
Paola Reply
Posted Jul 09, 2022 at 08:14:57
So I am a US citizen and both my parents are undocumented and entered the U.S. illegally. So there is no way they would receive a green card if I tried petitioning for them when I turn 21?
Cammy Reply
Posted Jul 19, 2022 at 11:12:45
My fiance is not legal and we want to get married. What are the chances of him getting papers thru me. I am a us citizen and he did entered illegally like over 20 years ago. He has a 23 year old from previous marriage. what’s easier for him to file paperwork
Christopher Keen Reply
Posted Jul 19, 2022 at 12:45:30
Cammy, this is a situation that is best addressed in a consultation. We can go over your fiancé’s history in great detail and map our the best path for him moving forward. Please get in touch with our office at 801-374-5336 to set one up.
Christopher Keen Reply
Posted Jul 19, 2022 at 12:51:19
On the one hand, if an individual parent entered legally into the U.S., with a border crossing card, or other visa, and overstayed it, and did not leave, then there is a lawful entry. When the child is 21 years old, he or she can apply for his parent, and the parent may be able to adjust status while in the United States, and become a lawful permanent resident.
There are a few exceptions. In order to see if you qualify you need to consult with an immigration attorney.
Christopher Keen Reply
Posted Jul 19, 2022 at 12:53:47
If an individual parent entered legally into the U.S., with a border crossing card, or other visa, and overstayed it, and did not leave, then there is a lawful entry. When the child is 21 years old, he or she can apply for his parent, and the parent may be able to adjust status while in the United States, and become a lawful permanent resident.
You would want to consult with a qualified immigration attorney in great detail about your situation. You are welcome to set one up with our office by calling in at 801-374-5336
Christopher Keen Reply
Posted Jul 19, 2022 at 13:12:29
Since every immigration case is differs in terms of personal information, country of origin, manner of entry and timing it is a good idea to consult with a qualified immigration attorney.
Diana Velasco Reply
Posted Sep 17, 2022 at 14:43:40
I currently have Approved DACA status. Can my 21yr old submit an application on my behalf even though he has a criminal record? 🥺
Christopher Keen Reply
Posted Sep 17, 2022 at 21:59:13
What a great question! There are a couple things to think about in a situation like this. First of all, a US Citizen who is petitioning for a family member does not have to have a clean criminal history. The time where we have concerns is when there is a criminal history of specific crimes against a minor. If a US Citizen has, for example, been convicted of a child sexual abuse crime, the petition will be denied unless the petitioner can prove that there is no risk of harm to the beneficiary. This is interpreted very strictly by USCIS and approvals are very hard to obtain, without any real appeal process. If your son has such an offense, consult with an immigration attorney Second, if you as a parent do not have a lawful entry, and no way to adjust status from within the United States (for example, 245(i) protection which is out of the scope of this article) then the petition may not be very helpful. You would have to leave the US to consular process, and that could trigger a 10-year bar. You would need a waiver and in order to qualify for the waiver you would need a Lawful Resident spouse or parent. Your US Citizen child could not serve as the basis for the waiver. In a case like this it is always best to consult with us or an experienced immigration attorney prior to filing your petition.
Christopher Keen Reply
Posted Sep 24, 2022 at 10:35:52
A key part of the strategy of your case depends on the manner of entry. If he truly entered illegally, without a visa, and evading the border checkpoint, and if there is no exception to the lack of legal entry in his case, he would need to leave the US and consular process through his country. Prior to departure he should obtain a waiver (See Provisional Waiver filed on form 601A). If he has a procedurally correct entry (meaning he may have been in a vehicle, for example, and been waived through at the border checkpoint) then maybe he can adjust status within the US without departing. Please contact us and we can discuss this through a consultation.
Christopher Keen Reply
Posted Sep 24, 2022 at 10:38:20
Each case and each person requires a specific analysis to determine if one of the exceptions to the lawful entry requirement may apply. These may be 245(i) protection through an old petition filed on or before April 30, 2001, possibility of parole for parents of children in the military, etc. If non exception applies then the normal process would prevent them from obtaining residency until they have been outside the US for ten years to overcome the ten year bar. Seek counsel of an attorney to determine the possible options.
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