Can my US citizen children help me fix my legal status?
The answer is complicated. It depends. So in that sense, this article by all means, is not a substitute for talking about your individual case with a licensed attorney that focuses on immigration law.
There are two major ways to obtain lawful permanent resident status. The first way is through an immigrant visa, which is obtained at the immigrant’s home country at the US consulate. When the person comes to the United States on that immigrant visa, then they will automatically obtain their green card. The other way is through adjustment of status, which is when you obtain your green card here in the United States.
But, to be able to apply for an immigrant visa or adjustment of status, you first have to have a valid petition filed for you based on certain family members or employers. Children can petition for their parents if they are US citizens and are at least twenty-one years old. However, a petition does not give you legal status. A petition only proves the relationship and whether you are eligible to apply for an immigration visa or adjustment of status.
I am here in the United States and my child is a US citizen and 21 years old – can he/she petition for me?
Yes, your child can petition for you, but again, that doesn’t mean that you will be able to fix your status. It depends on how you initially arrived in the United States.
I came with a visa
If the parent of the US citizen child entered the U.S. on a visa, then the parents may be eligible to adjust status through a petition filed by their twenty-one year old child. But you have to be careful, not all visas are eligible for adjustment of status. You need to see an immigration attorney to check to see if the visa that you initially entered with is eligible.
I came without a visa
If the parent did not enter the United States with a visa, i.e. crossed the border. There still may be options for you. An immigration attorney will need to look to see if you had any prior petitions filed by any other family members, a spouse or a former spouse, or an employer. If filed before April 30, 2001, then you may be eligible for a program called 245(i) that would allow you to pay a fine for having crossed the border without papers. This program allows people, despite having worked without authorization or having crossed the border without a visa, the ability to adjust status – i.e. get your lawful permanent resident card here in the United States without having to leave the country.
I had no prior petitions – can my child still help me
Again, that depends. Your child can always petition for you, but unless you entered with a visa, you will not be eligible to adjust status. Once the petition is approved, then you will have to leave the country and go to the US consulate for an interview for your immigrant visa. The problem is that if you were in the United States without legal status for a year, then you will have a 10 year punishment where you will not be able to come back into the United States. There are no waivers available unless you have a US citizen/ lawful permanent resident spouse or YOUR parent is a US citizen spouse/lawful permanent resident and you can show that that spouse or parent will suffer extreme hardship if you aren’t allowed back in the United States, you will have to wait ten years outside the US to be able to use that petition that your child did for you. Therein lies the problem. A lot of parents of US citizens do not have a qualifying relative for a waiver, and thus, will be facing a ten-year bar if they leave the United States and try and obtain the immigrant visa.
So are these the only options
Again, it is important to talk about your individual case with an immigration attorney, but there are a limited number of other options available. If you have Temporary Protective Status (TPS) or Deferred Action for Childhood Arrivals (DACA), or if your child is in the military, there may be options for you.
Also, there is a possibility that the Supreme Court will approve the Deferred Action for Parents of US citizens/lawful permanent residents (DAPA) and you may have the option of obtaining work authorization. However, this is a discretionary benefit, and each presidential administration can decide whether the program stays in place or not, so you should talk with a licensed immigration attorney about the benefits and risks before applying, if the Supreme Court allows for DAPA to go forward.
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