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green card for undocumented parents from within the U.S.

As an immigration attorney in San Diego, CA, I received a number of inquiries from US citizen children who would like to know how to legalize their undocumented parents. The simple answer is it depends. Immigration attorney Narciso Delgado-Cruz explains the circumstances in which a U.S. citizen child can give their undocumented parent, living in the U.S., a green card. This article furthermore provides you with more detailed information on the topic.

 

 

Children born in the U.S

Any child born in the U.S. is entitled to U.S. citizenship under the 14th Amendment of the Constitution (exempt are only children of parents who are foreign diplomats or members of a sovereign Native American tribe). However, a child’s right to citizenship does not extend to the child’s parents, whose legal status in the U.S. is unaffected by the birth of their child.

 

How can a child legalize their undocumented parents in the U.S.?

Once a U.S. citizen child reaches the age of 21, it may be possible for the child to give their undocumented parents a green card. This post explains the petition process and can help you determine whether your parents qualify to obtain a green card if you are over the age of 21.

In short, you can qualify to give your undocumented parents a green card if your mom or dad falls under one of the three paths outlined below:

 

 

canstockphoto14439800Path I – Your Parents Last Entry into the U.S. was ‘Legal’

The first and easiest way to give undocumented parents a green card in the U.S., requires the parents’ last entry into the U.S. to be a legal entry. This means that they were lawfully admitted to the U.S. (e.g. tourist visa, student visa, etc) and inspected by U.S. immigration officers. Often times, undocumented parents of U.S. citizen children come to live in the U.S. by overstaying on a tourist visa (B1/B2 Visa). Their use of the legal entry into the U.S. is documented when entry is made at an airport, a seaport, or a border port of entry (like the San Ysidro Port of Entry).

If your mom or dad came to the U.S. via inspection and lawful entry, they may qualify to obtain a green card in the U.S.

 

How can I prove the last entry into the U.S. was legal?

To prove that your parents’ last entry into the U.S. was legal, you will have to submit evidence. This may include an I-94 admission record, a stamped passport, and/or a border crossing card. If your parents’ last legal entry was within the past five years, you can easily obtain the I-94 admission record through www.cbp.gov/i94.

 

How can I prove my last entry into the U.S. was legal if I don’t have any record?

If an I-94 is not available online because it dates back further than the past five years, you can request a Freedom of Information Act (FOIA). A FOIA request allows a member of the public to access their own records held by any government agency. Our immigration lawyers can help you determine if you need to file a FOIA request to obtain lost or misplaced entry records.

 

canstockphoto1319730Path II – A Petition was Previously Filed on or before April 30, 2001, on Behalf of the Parent(s)

Undocumented parents living in the U.S. can also obtain a green card through their 21+ year-old or older U.S. citizen children if they were the beneficiaries of an application submitted on or before April 30, 2001. For instance, a labor certification (I-140) or an immigrant visa petition (I-130) submitted years ago on or before April 30, 2001.

Undocumented parents may have been petitioned by a business they worked for or by another family member like a brother or sister. If their application petition was filed on or before April 30, 2001, they may qualify for adjustment of status from within the U.S. under the Immigration and Nationality Act (INA) Section 245 (i) – even if their last entry was not legal. Under these circumstances, they may have the opportunity to obtain a green card as long as they pay a $1,000 penalty.

 

How do I prove a petition was filed on or before April 30, 2001?

The evidence USCIS requires, in these cases, is the original receipt of a petition submitted on behalf of the undocumented parent. This may have been an I-130 family petition or an I-140 business petition. If you do not have the original petition in your personal documents anymore you can obtain it by filing a request under the Freedom of Information Act (FOIA). The FOIA was enacted to allow the public to access the own records held by any government agency. Our immigration law office can help you file your FOIA request.

 

Why are previous petitions still relevant under INA 245 (i)?

Wait times of several years for the approval of an immigrant visa petition are not uncommon in the U.S. immigration system because it is a preferred category system. This means that the government created categories for the different kinds of relationship between the immigrant and the U.S. citizen or legal permanent resident petitioning. Some categories of immediate relatives such as spouses or unmarried children under the age of 21 are considered a priority and petitions will be approved immediately or with a very short wait time. For other categories of non-immediate family members such as brothers and sisters, the wait time may be much longer. Therefore, it is possible that a petition on behalf of your parents was submitted on or before April 30, 2001, but USCIS has not approved it yet.

 

Does a petition that was denied or withdrawn qualify under INA 245 (i)?

If a petition on your parents’ behalf was filed on or before April 30, 2001, but it was denied, USCIS will decide whether it still qualifies based on the reasons why it was denied. The petition may still qualify if the reason for the denial was a change in circumstances after it was filed that was outside your parents’ control. For example, if a business filed a petition on your parents’ behalf but later went out of business, USCIS acknowledges that this was beyond your parents’ control and that their application was still “approvable” when it was filed. Therefore, the petition would still qualify even if it was denied. However, if your parents’ petition was denied because it was fraudulent or because based on the claimed family or business relationship a visa cannot be granted, it does not qualify.

Furthermore, if a petition was filed on or before April 30, 2001, but later withdrawn it generally still qualifies. USCIS will closely evaluate the case, however, and may decide otherwise, for example, if the officer suspects that the petition was withdrawn to avoid an expected denial.

 

canstockphoto12362308Path III – You, their Child, are an Active Member or a Veteran of the Armed Forces (Parole in Place)

Even if your parents do not qualify for petitioning from the U.S. via the first two paths, there is another option for your family if you, the U.S. citizen child petitioning, are an active member or a veteran of the armed forces. In this case, your parents may be eligible for “parole in place (PIP)”. Through PIP, USCIS can legally “parole” your parents into the U.S. and thus make their last entry a legal entry.

 

How can I request Parole in Place from USCIS?

To request parole in place for you parents from USCIS, you will have to file Form I-131. The form requires no fees from USCIS. The request needs to be accompanied by evidence such as birth certificates, documentation of your service for the armed forces, and favorable discretionary items.

 

How can I know if USCIS will grant my parents Parole in Place?

The decision whether to grant or not to grant undocumented parents parole in place is at the discretion of USCIS. Even though it is not possible to know for certain whether USCIS will grant a PIP request, your chances are better if your parents meet the following criteria:

  • Good moral character
  • No criminal history
  • No extensive immigration violations

 

What documents do I need to give my undocumented Parents a Green Card?

Depending on the path taken to petition undocumented parents, USCIS may require different documents as evidence to support your claims. In any case, you will have to submit the following two forms along with all additional evidence.

 

Form I-130

The purpose of Form I-130 is to identify the parties, such as the U.S. citizen petitioner and the immigrant who will benefit from the petition (the beneficiary). Furthermore, this form informs USCIS of the relationship between parties (21+ year-old U.S. son or daughter and their foreign national parent). USCISC will determine the preference category of your petition and the corresponding wait time for the application. Additionally, the Form I-130 indicates whether you are petitioning from within the U.S. (adjustment of status) or outside the U.S. (consular processing).

The filing fee for Form I-130 is currently $420.

 

Form I-485

The Form I-485 is the actual adjustment of status application or green card application. Along with the Form I-485 you will have to submit the following other documents:

  • Medical examination certification
  • Evidence and information about the relationship between you, the petitioner, and your parents, the beneficiaries (for example birth certificates)
  • Additional evidence depending on the path you took:

 

Path I

(legal entry)

  • Evidence of legal entry (for example I-94 admission record)

Path II

(previous petition)

  • Previous petition for adjustment of status or application for labor certification filed on or before April 30, 2001
  • Evidence it was received on or before April 30, 2001
  • $1,000 penalty

Path III

(parole in place)

  • Approval of PIP from USCIS

 

The filing fee for Form I-485 is currently $1070.

 

What happens after I file a Green Card application for my undocumented parents?

After you submitted all forms and supporting evidence, you will receive a Form I-797C from USCIS that confirms that your petition and fees were received, and your petition is being processed.

 

Interview with USCIS officer

It is possible that you will be invited to an interview with a USCIS officer. However, USCIS may elect to waive the interview at times. If you are nevertheless required to present yourself at an interview, you have the right to be accompanied by an attorney.

At the interview, the officer may it is possible that your interview informs you at the end that he or she will recommend your application for approval with the supervisor. In this case, you will usually receive the green card(s) in the mail within 10-15 days via USPS.

 

How long does it take for the petition to be approved?

Usually, a green card petition for an undocumented parent in the U.S. on behalf of his or her 21+ year-old child takes about 9-12 months to be approved.

 

Legal Disclaimer: Nothing in this website should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation.

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