Like many aspects of immigration law, the difficulty of winning an approved visa for immigrant relatives is often underestimated.
This occurs more often than might be suspected when I-130 petitions for parents are filed by their U.S. citizen children.
Parents who could be living with their adult children are separated by hundreds of miles.
Sometimes the errors lead to permanent separation.
In this article, we’re going to explore common mistakes made by such families.
The goal is to steer you and your parents away from similar miscues.
What Are The Requirements For Children To File An I-130 Petition For Parents?
First things first.
To petition a parent for immigration benefits, a son or daughter have two requirements:
- The child must be a United States citizen.
- The child must be 21 years or older.
A permanent resident child cannot immigrate parents.
There is an easy solution. Apply for naturalization. After winning citizenship, the child can file a visa petition on behalf of their parents.
Frankly speaking, this error should never happen. Unfortunately, it does. And the consequences for some parents can be disastrous.
Where Is The Parent Living When The Immigrant Visa Petition Is Filed?
The answer to this question is likewise simple.
There are only two responses. One, your parent is in the United States when you file the I-130 petition for them. Two, your parent is residing abroad, usually in their home country.
Residence, alone, does not determine success versus failure.
Regardless of locale, one parent may have a straight-forward path to permanent resident status. The other may have stringent hurdles to overcome.
Here is the crux of the matter. Your parent’s current place of living is tied to his or her immigration history.
What Is Your Parent’s Immigration History?
In short, your parent’s immigration history can lead to major complications. You must assess these issues before filing a visa petition for them.
- Is your parent currently visiting on a valid visitor visa which has not expired?
- Or did your parent enter with the U.S. without inspection?
- On the other hand, perhaps your parent lives in his or her home country.
(A parent who arrived with a valid temporary visa which has expired may or may not be in the relatively same legal position as an immigrant who entered without permission.)
Let’s take a closer look at what problems might arise.
Are Your Parents In The U.S. With A Valid Temporary Visa Which Has Not Expired?
We’ll begin with a parent in the United States.
If your parent is living in the U.S. with a valid temporary visa, she might be able to apply for a green card without leaving the country.
Because she arrived with a visa, usually a tourist visa, it means she entered with inspection.
No Intent To Permanently Live In The U.S. At Time Of Entry
Here is a recurrent situation that I have seen in my San Bernardino immigration law practice.
The parent arrives in the U.S. to visit a son who she has not seen in many years. As the days go by, she grows close to his wife. She enjoys the company of her grandchildren.
Her husband passed away several years ago, and has lived alone since that time. She no longer works. Towards the end of her six-month stay, her son asks her to stay and live with them.
Not wanting to break the law, the parent says, “We should talk to a lawyer. I want to find out if I remain in the United States, will I get in trouble?”
The entry was legal. The intent of the parent was to visit. It is possible for her to file papers for permanent resident status.
She qualifies to seek a green card under the adjustment of status process. She can attend an interview in the U.S. without having to return home.
(Of course, there are other concerns which must be examined before filing a petition. In particular, an immigrant parent can be deemed inadmissible on various grounds. These reasons include health, financial, security concerns, as well as past criminal convictions and immigration violations.)
Intent To Permanently Live In The U.S. At Time Of Entry
Now, let’s change the facts a little.
This time, the parent entering the U.S. on a tourist visa had planned to seek permanent resident benefits. Prior to entry, she knew her son would file an I-130 parental petition to begin the green card process soon after her arrival.
In other words, her purpose was to live here, not simply to visit.
This is visa fraud.
A person allowed to enter the U.S. cannot have a dual intent. They are either visiting or planning to stay.
Immigration law is strict. An immigrant who enters the country on a temporary stay cannot have the intent to remain here.
This type of problem often arises without deliberate forethought
For instance, some immigrant parents come and go for several years. They have no plans to move here. Then one day while visiting they have a change of heart. They inform their child that they now want to live in the U.S.
Before taking this step, they need to handle some family and business matters back home. So they return to their home country to clean things up.
Both parents and child know when the parents will re-arrive as tourists the next time, they win begin the family immigration process.
They have no intent to deliberately violate immigration policy.
But when they enter, do they plan to apply for a green card?
Unfortunately, their actions could prevent the parents from becoming legal residents.
Worse, they are likely to be stripped of their tourist visa and barred from ever re-entering the U.S. ever again.
There is a solution.
Go back to their home country. Before their visa expires.
Then they can seek permanent residence through consular processing at an embassy abroad.
(This fix-it strategy assumes the parents have not overstayed their visas, a situation which could raise other legal issues.)
A longer solution, time-wise?
But a safer course of action.
Are Your Parents Living In The United States Without A Lawful Entry And Inspection?
In most cases, a parent who has entered without inspection are required to return home for their permanent residence interview.
If they have lived here over 180 days, they will need to apply for an I-601 inadmissibility waiver to re-enter the U.S. legally after their interview.
The waiver is based on a concept of extreme hardship.
Extreme hardship suffered by whom? A qualifying relative.
Well, who counts as a qualifying relative? A United States citizen or permanent resident spouse or parent of the immigrant seeking permanent residency benefits.
This means a son or daughter who has filed an I-130 petition to immigrate their parents does not count as a qualifying relative for purposes of the I-601 waiver.
In some family situations, the obstacle is insurmountable.
The immigrant parent who is seeking to become a green card holder may be single, divorced, or separated.
Further, the immigrant parent is often unlikely to have their own parent living in the United States, especially one who is a permanent resident or U.S. citizen.
In other words, they lack qualifying relatives upon whom to base their hardship claim.
Yet, all hope may not be lost.
As a family visa attorney, I have seen many cases where an old I-130 petition enables the imigrant parent to forego the need for consular processing. Instead, they qualify to adjust their status to permanent residency through an interview in the United States.
Perhaps a former spouse filed a petition on behalf of the immigrant long ago, before their divorce. Or a parent of the immigrant before their death.
The old petition allows them to be “grandfathered in” under the rules in place before the current ones went into effect. It saves the immigrant parent from having to return home – much like an immigrant parent who entered legally.
As with all roads to immigration success, there are other requirements that must be met under this approach.
A word of caution.
This area of immigration law is ripe for abuse by scammers.
Take Isaac, a hard-working fellow in his mid-fiftys with a 27 year-old U.S. citizen son. Isaac had remarried. His wife was a green card holder and they had three young children.
His U.S. citizen son petitioned him for a green card.
He contacted my office after USCIS denied his application for permanent resident status.
He had gone to a local interview for his green card interview. He sought to adjust his status in the United States.
He had entered with a tourist visa about 20 years ago. He returned home within the proper time frame. He tried to re-enter a decade later but had problems at the border. He was not allowed to cross. A few days later, he came back without inspection.
Before filing for a green card, he and his son went to an attorney’s office for help. They were told he could adjust status in the United States based on the original entry, which was legal.
The advice was not accurate. On his second trip to the U.S., he had entered without permission.
At the interview, the officer informed Isaac the application was being rejected. Isaac learned he should have pursued benefits via the consular processing route.
The officer also said the case would be referred to immigration court. He was told to expect a Notice To Appear in the mail. This would mark the start of removal proceedings against him.
In other words, Isaac had been led down the wrong path. He paid a handsome fee for the services. His family was a victim of immigration fraud.
This problem is not uncommon. Many immigrants do not know when they can and when they cannot attend a local interview.
They do not understand the difference between adjustment of status and consular processing.
Immigration con artists know this. They take advantage of such individuals.
Fraud is an issue that you and your family have to be very careful about.
A Note On The Anchor Babies Mythology
Before leaving this section, I want to briefly address the anchor babies mythology.
Critics of family immigrant often assert that immigrants cross the border to give birth in the United States. The goal, they assert, is that the children will be U.S. citizens and able to immigrate their parents for permanent residency.
But as the explanation above shows, the process could take three decades.
Simply to begin the I-130 petition for parents process takes two decades. The newborn has to be at least 21 years old to petition a parent. The parent, having entered without inspection, has to seek a green card via consular processing. At minimum, this adds 2 years to the process.
And then the parent must win a waiver to return to the U.S. lawfully. In many cases, the parents will not have a qualifying relative. In others, the parent may be barred 10 years before being allowed to re-enter.
In short, anchor baby rhetoric is built on legal falsehoods.
Are Your Parents Living In Another Country?
This is the classic consular processing situation.
The sponsoring child lives in the United States. The immigrant parent lives abroad.
Seems rather basic, right?
Not so fast.
For here, too, the parents’ immigration history can be decisive.
Remember the parents who one day, while visiting, decided to move to the U.S.?
First they returned home to clean up family and business matters.
They re-entered with the knowledge they planned to file for permanent resident status.
Do you recall my suggestion?
That they should go home again and file for green card benefits from abroad.
They should go back before their temporary visa expires.
By doing so, they would not incur any immigration violations. They would avoid overstay problems and potential visa fraud charges.
(Their interview process is the same as parents who must file an I-601 waiver. But unlike those parents, they do not have the burden of overcoming of living in the U.S. without permission.)
Absent any immigration violations, their biggest concern is usually the waiting period.
Can A U.S. Child Sponsor A Step-Parent Or Adoptive Parent For A Green Card?
Before closing, I’d like to touch on one more aspect of U.S. child – immigrant parent petitions.
In brief, what happens when the parent of the child is not the biological parent?
A U.S. citizen child, over 21, can petition a step-parent or adoptive parent under the following conditions:
- For a step-parent, the marriage that created the step-relationship must have occurred before the U.S. citizen child’s 18th birthday.
- For an adoptive parent, the adoption must have been completed before the U.S. citizen child’s 16th birthday. In addition, the step-parent and the child must have lived in the same household for at least two years.
Armed with the information above, filing an I-130 petition for parents should be a safer journey.
Remember their immigration history plays a crucial part in determining success or failure.
Pay special attention to this factor.
Especially if your parents have an extensive travel record or lived in the U.S. for a lengthy period.
If there are no such blocks, the outcome of your parent’s case will turn on the evidence presented.
Do not, do not, do not minimize the importance of verifying their residency and trip details.
If there are issues, seek professional advice. There may be options unknown to you that lead to green card victory.
Besides, nothing less than being nearby your parents in their golden years is at stake.
Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .