Can My U.S. Citizen Child Help Me?

This article originally appeared in our 2016 Newsletter

This is a common question, here are the scenarios where your U.S. citizen child might help you get a green card (permanent residency) if you are in the U.S. unlawfully. If you are outside the United States, then please see information about Family Green cards.

Your child is 21 years or older

Your child must wait until s/he is 21 years old in order to file a family petition for your green card. The petition must include evidence to prove you are related, such as a birth certificate. Once that petition is approved, then U.S. immigration officials will schedule an interview with you, to inspect your criminal and immigration record. The interview could take place inside the U.S. if you are already here, or more commonly it will take place outside the U.S. There are many potential obstacles if you are currently inside the U.S. unlawfully, or if you were ever here unlawfully in the past.

To see if you qualify to get your green card inside the U.S., see our blog post “Adjustment of Status: Waiting Inside the United States for your Green Card Interview. “

Cases with unlawful presence are very complex, and you should always consult with an experienced immigration attorney before starting the legalization process.

If your child suffers from a grave or serious physical or mental condition (“Cancellation of Removal or a ten-year case”)

In this unfortunate situation, your child’s condition could qualify you for a green card, but only if you are already in deportation/removal proceedings with the Immigration Court. For those who are not already in proceedings, there is very little you can do to surrender to the Court system, because it is up to U.S. ICE to make that decision and place you in the system. Moreover, surrendering yourself is an enormous risk, because if you do not win your case, then you could be removed from the country. Also, court cases can take years, and there is a risk that the laws will change and leave you unprotected from deportation.

For those who are already in deportation/removal proceedings, then you may be able to apply for Cancellation of Removal due to your child’s condition. Cancellation has three requirements though; you must:

• Be in the United States for at least ten years before receiving the notice to appear in Court;
• Have a clean criminal record, and show you have good moral character; and
• Establish that your U.S. citizen child would suffer “exceptional and extremely unusual hardship” if you are required to leave the U.S. This means hardship far beyond anything that the average child would suffer, and in this law firm’s experience, the Immigration Judges will only grant the green card in cases where there is a risk of death, or where there is absolutely no treatment available to your child in your home country.

Cancellation cases and removal proceedings are complex, and you should consult with an experienced immigration attorney.

If your child is a victim of a violent crime, or domestic abuse

In this situation, you may be eligible for a U-visa which protects parents of children who are a victim of a violent crime victim or a victim of domestic abuse. The law does not even require your child to be a U.S. citizen. If your child has been a victim, you should confer with an experienced immigration attorney to verify if you qualify for a green card.

No other options

Despite what you may hear, there is no other visa, amnesty, pardon, parole, path or program to get lawful status through your child, if you are in the U.S. unlawfully. If your child is ill or suffers from a disability, it will not protect you if the government tries to arrest you, and you cannot apply for any special permission to remain inside the U.S. and care for your child. In some circumstances, you may be able to postpone imminent deportation due to your child’s grave health, but that is not a path to a green card.