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.
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.
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.