People seem to be super confused because there’s so many ideas and TikToks and YouTube videos out there. People get confused about how in reality they can legalize if they have US citizen children. There are questions about whether those kids were born here, if they became a citizen through another parent or through some other process. Many people here are undocumented and do have US citizen kids or spouses. So, they want to know about the process if the kids are over 21, if the kids are under 21, if they came with a visa, if they came without a visa. Here are the main three processes for legalizing through your US citizen kids.
There are three major ways to legalize in the US through your US citizen or US Green Card holder children.
Does your child’s age affect your immigration process and application for a visa or green card?
If your kids are under 21, there’s a certain process to go through. If your kids already turned 21, they’re adults, they’re grown, maybe they’re married, that’s a whole different process. So, let’s start with where your children are.
What the immigration process looks like if your kids are over 21 and you initially came here with a visa.
So, your kids have had their 21st birthday. They’re legal to drink. They’re legal to smoke and maybe they’re even legal to get married. How do you legalize through children over 21 years of age?
If you came with a real visa, here is the process for your legalization journey.
You went to the consulate and you received a visa in your passport. You crossed into the United States with your own passport, with your own visa, but maybe you overstayed. Let’s say you came here 20 years ago and you never left. This process is for you.
If you came to the US without a visa, getting citizenship through your children is not the right path. It’s not for anybody who came with a crewman’s visa on a cruise ship or on an airplane or on a ship or anything like that. This is only for people who got a real visa, such as a tourist student, non-immigrant H-1, diplomatic, anything where you had a real visa.
If your kid turns 21 and they are a US citizen, they simply file an I-130 family petition with your forms for adjustment of status green card. If you didn’t have any prior deportations, if you never had any major crimes, if you never did anything bad in the United States, if you never left and came back through the border, this one is for you. You came with the visa. You quietly stayed here. You overstay your visa and your child, who is a US Citizen turned 21. You can be legalized by this kid who is over 21 or even by a spouse who is a US citizen. The child will need to be a sponsor and have an affidavit of support for you. If they don’t make enough money, because 21 is still pretty young, sometimes they’re students, you will need a second sponsor, joint sponsor or co-sponsor. But, your child will be the primary sponsor sponsoring you to become a US citizen. That’s process number one for kids over 21.
What the immigration process looks like if your kids are over 21 and you have no proof of how you got here.
For parents of an adult child who is a citizen or greencard holder over 21, there is another process for those who came into the United States with no proof how they got here. There’s no visa to show for it. You crossed without inspection. Maybe you crossed the border with somebody else’s passport and no longer have that passport. You never asked for asylum, you just crossed through Mexico or Canada. You never registered because maybe you never had a visa and you stayed quietly here for more than whatever amount of years.
If your kid is over 21 and you came in with no visa or somebody else’s passport, and you really have no proof of how you came in here, the process for you is a family petition, I-130 authority petition with a waiver. In this case, you’ll be getting your green card by leaving the United States, only I-601a provisional waiver is approved first.
Traveling to your country, you will have a consular interview. Whether you are from Mexico or Kazakhstan or Pakistan or Nigeria, it doesn’t matter. Your kid is over 21, you came into America with no visa, you file a 601a provisional waiver to waive the fact that you came, however many years ago, without any status. You need the I-601 waiver filed together with your child’s family petition I-130 relative petition. You’ll be getting your paperwork through the national visa center and then the consulate in your home country. This is a big risk and I don’t always recommend doing this. There could be a thousand reasons the consulate might not let you come back, even if you have the I-601a provisional waiver approved.
Side note: you might need another waiver. You might need an I-601. If you committed crimes here, or if you filed for things and you put down untrue or fraudulent information in your papers, (perhaps because you tried to legalize and somebody promised you something that wasn’t possible before), and it didn’t go through, you might need two waivers.
What the immigration process looks like if your kids are over 21 – VAWA (Violence Against Women Act).
There’s another way to legalize. That’s called the Violence Against Women Act (VAWA). VAWA is not only for women – it is applicable to anyone in certain situations. VAWA is for people who have a child over 21 who abuses them.
Your child will not get in trouble. They will not have any anyone coming to them to share what you’re doing. They will not even find out you filed for this.
You only have to prove that your child is over 21, and that your adult kid abused you. It doesn’t have to be physical; maybe they called you names, they put you in bad situations, they belittled you, humiliated you, controlled you, treated you poorly. Maybe you don’t have a good relationship with that child because they got arrested or put you through hell growing up, doing drugs or other poor behavior. If that’s the kind of relationship you have, this is the third way of legalizing through your kids: the abuse self petition, I-360 VAWA petition.
What the immigration process looks like if your kids are under 21 and you initially came here with a visa.
Now, we put aside kids who are over 21. Let’s talk about little kids, your kids. If you have a child who is under 21, who are under 21, ideally under 18, we go to the next process of legalizing. This is called cancellation of removal for non-lawful permanent residents under the section of law called 42-B. That’s for people who cross into the United States without a visa, with somebody else’s passport, or even with a visa. All of those people are eligible. They have young kids who are under 21, preferably under 18, and they’ve lived here for 10 years continuously without leaving.
For people in this situation, we can do cancellation of removal. We file for asylum for you because we need to get into immigrant court. Only an immigration judge can give a green card under cancellation of removal through kids under 21, for people who are here over 10 years, only an immigration judge.
Side note: That’s why there are these rumors out there that you have to get arrested by ICE first. No, you don’t have to get arrested, but you do need to be in immigration court. If you’ve never been arrested and haven’t had any problems, the only way for us to get you in immigration court is to first file for asylum. That will be denied by the asylum office and the case will go to immigration judge. Then, we file for cancellation of removal and we get you a work permit.
While you wait for your court hearing, the visa might not be available. Even if you win court now, big condition here, you win only if you can prove your children have special problems, it’s called extreme hardship, a unique situation. Maybe they have medical problems. Maybe they have mental health problems. Maybe they need special education in a school that only in America they can get. If they go to India or Pakistan or Pakistan or Nigeria, this kind of help will not be available for them. If they’re blind or deaf, or if they have heart problems or allergies or asthma, or they need a therapist or they have ADHD, all of those situations would help you with cancellation of removal. Honestly, if your kid is healthy and everything good with them, they might not be approved. So we pick very carefully who qualifies for cancellation of removal. Again, for the cancellation of removal process, you need 10 years in the United States. If you get arrested, the 10-year clock stops. If you’ve had a prior immigration court case, the minute you were served with a notice to appear the clock on the 10 years stopped. It doesn’t mean that there’s nothing we can do for you, but maybe cancellation of removal won’t be for you.
These topics are super complicated and I gave you a lot of information. To explore your case, give us a call for a consultation. All our consultations are by me or by attorneys I have personally trained, lawyers who I personally trained to work in these processes. They’re paid legal consultations with our best lawyers. I look forward to seeing you and speaking with you in our office. We understand all the issues you’re dealing with. Give us a call today to legalize in the United States!
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Shepelsky Law Group