I am Undocumented, But My U.S. Citizen Kid Just Turned 21: Can I Legalize My Status?

By:  Richard Hanus, Esq.

July 30, 2023

The undocumented foreign nationals I meet have been residing in the U.S. for periods ranging from 1 to 35+ years.  They play a role in pretty much every aspect of day to day American life, working as grocery store clerks, mechanics, assembly line workers, home builders, chemists, nurses, caregivers, electricians, truck drivers, restaurant workers, restaurant owners, housekeepers, computer programmers, real estate agents, home health agency owners, landscapers…the list goes on.  Some are even in law or medical school or are earning their Ph.D’s.  Many have families, including children born in the U.S.  Many have U.S. born children who are now turning 21 years of age, or have adult children who have otherwise been able to naturalize as U.S. citizens.   Regarding these adult U.S. citizen children, one of the big questions I am most frequently asked is whether these children can act as petitioner to legalize their undocumented parent’s immigration status and facilitate approval of their lawful permanent resident status or “green card”.   The simple answer is SOMETIMES.

In light of widespread misinformation across our immigrant communities and how it impacts the hopes and dreams of millions of desperate undocumented folks, below is a discussion of common scenarios faced by this segment of our population and the facts about available legalization options.

Undocumented parent entered with inspection but overstayed their visa status:   With some exceptions (such as those entering on a fiancé or crewman visa), foreign nationals who enter the U.S. on a visa and overstay, may be eligible to legalize their status in the U.S. by way of their over 21 year old U.S. citizen child’s petition and WITHOUT THE NEED TO LEAVE THE U.S.   Their petitioning 21 + year old child can be a U.S. citizen by birth or by way of naturalization, and as long as the undocumented parent has an appropriate financial sponsor and no serious criminal background or other disqualifying history, they may be eligible to adjust their status and undergo all green card processing in the U.S.

Undocumented parent entered without inspection (EWI):   An EWI undocumented parent of an over 21 year old U.S. citizen, often has available options to legalize their status but usually it involves a complicated, several year process and eventually having to depart the U.S. to attend an immigrant visa appointment at a U.S. consular post abroad and under very particular circumstances.

First, under what circumstances might an EWI undocumented parent be able to legalize their status to permanent resident without departing the U.S to appear at a US consular post?  When that parent is eligible to adjust their status in the U.S. pursuant to INA 245(i).  A small population of EWI undocumented parents of adult U.S. citizens may be covered by INA 245(i) and eligible to adjust status without departing the U.S. if,  among other requirements, they or one of their parents had previously been the subject of a specific type of family based or employment based immigration petition and at a certain qualifying time – prior to April 30, 2001 (or in some cases, January 14, 1998).   Eligibility under INA 245(i) can be tricky and prospective applicants must give careful consideration to the many requirements at play before proceeding.

An EWI parent of an adult U.S. citizen who is not covered by INA 245(i), will only be eligible to eventually legalize their status by way of an overseas US consular post interview, but only after they have first received approval of the I-130 visa petition filed on their behalf (easy to accomplish) and later, approval of their I-601A, application for waiver of inadmissibility (less easy to accomplish).   To be approved for an  I-601A waiver, the EWI parent must document that their own U.S. citizen or lawful permanent resident (green card) spouse or parent will experience extreme hardship in the event of waiver denial.   So, if the undocumented parent at issue has neither a spouse nor a parent themselves who is a U.S. citizen or lawful permanent resident, then there is no eligibility for a waiver and thus no path to legalization.  Aside from proving hardship, there are numerous other key factors and requirements to consider before proceeding, including a multi year wait for a consular interview abroad and the ever present risks and uncertainty about being allowed reentry back into the U.S.

An EWI parent of an adult U.S. citizen who is, or was, in the U.S. armed forces may be eligible to legalize their status and undergo all processing in the U.S.   By way of a Parole in Place application, the EWI parent (same for an EWI spouse, widow or child of a U.S. citizen) can seek to have their U.S. immigration status converted from EWI to “parole” through their adult child’s military service without departing the U.S..  From there, the EWI parent establishes eligibility for adjustment of status and to have their permanent resident status process completed in the U.S. as if they had entered the U.S. legally, and without the need for a waiver and departing the U.S. to complete processing.

Defense to Removal Proceeedings:  In a completely different context, being the undocumented parent of a U.S. citizen or lawful permanent resident who is under 21 years of age, can sometimes prove valuable in presenting a defense to deportation in removal proceedings.  However, that does not mean such a relationship can be the legal basis of an affirmative measure to legalize one’s undocumented status.

It is worth mentioning that the above discussion regarding an undocumented parent of a U.S. citizen’s path to green card applies almost identically to an undocumented individual’s eligibility to legalize their status by way of a marriage to a U.S. citizen, or a lawful permanent resident who becomes a U.S. citizen.

Coming out of the shadows to embark on a path to legalization is a serious, high stakes step.  It usually involves quite a bit stress as well as a significant financial expenditure.  The options at play as discussed above are limited, so before availing of a legalization option, an undocumented foreign national should do their research and obtain the most thorough and experienced legal guidance available.   For more widely accessible legalization options, our undocumented population of 12 million will have to continue to wait for Congress to act.

PUBLISHED July 30, 2023 – “IMMIGRATION LAW FORUM” Copyright © 2023, By Law Offices of Richard Hanus, Chicago, Illinois

By |2023-08-08T07:38:33-05:00July 30th, 2023|Categories: Family-Based Immigration Law|
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