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Can A Minor U.S. Citizen Child Petition Parents For Green Card?

Question:

“My husband and I would like to know if we can become permanent residents. Our daughter is a U.S. citizen. She is three years old right now. Can we get green cards through her? Both of us came to the United States on student visas. We met in college. We fell in love. Our visas have not expired.”

(Submitted by Paula G., Corona, CA)

Answer:

Maybe. But not at this time. Only in the distant future.

Let me briefly explain.

A child born in the United States can file to immigrate their parents, but only after the child turns 21. At that point in time, the parents will need to meet all the other requirements for earning a green card.

Unfortunately, until your daughter gets to this age, she is not able to help your and your spouse become lawful permanent residents by filing an immigrant visa petition.

Some people get confused about this issue because there have been several stories in the news about undocumented immigrants who become legal residents through their children born in the United States.

In these reports, some journalists use the term “anchor babies.”

Normally, these stories talk about parents, who enter the U.S. without permission, before a child is born, in order to give birth here. Then 21 years later, the child sponsors their parents to legalize their status.

These stories are almost always used in a negative way by those who oppose immigrant-friendly changes to immigration law.

These stories are generally exaggerated.

As I talked about in The Attack On The Fourteenth Amendment And The Myth Of Anchor Babies, under the laws of today, it would take these parents over 25 years in most situations to become permanent residents.

They would also have to go back to their home countries for their interviews – and that raises other legalities which would prevent such parents from ever becoming permanent residents.

But this is not your situation. You entered lawfully and you were not pregnant when you arrived.

Moreover, because you and your husband are living in the U.S. based on a temporary student visa, I presume the two of you will return to your home countries when your visas expire.

(Of course, other immigration possibilities may arise that enable the two of you to continue residing in the U.S. lawfully.  If such an option arises, you will also be likely on track to win a green card under that program, well before your daughter reaches 21.)

To determine the existence of viable alternative green card paths for you, I recommend you speak to a permanent residence lawyer versed in the family petition system and green card laws.

Assuming you return home and are living abroad, your daughter could still help you gain legal status in the United States. When she turns 21 years old, she can file a petition for your permanent residency at that time. Because you are living abroad, your green card paperwork will proceed through consular processing.

At that time, depending on where she is living, there might two filing options.  If she has come back to the U.S., she would file your petitions with a local USCIS office.

If she is living abroad, she may be able to submit your applications to a U.S. international office.  Not all countries have offices that allow such filings.  But if your country has this option, this course of action may actually speed up the permanent residence application process.

Now, there are situations where having a young child born here can help undocumented immigrants win legal status.

I mention this issue here only to round out the discussion on the potential impact of small children on immigration cases.

To be sure, I do not encourage any immigrants to overstay their visas.

There are some individuals, however, who remain in the U.S. after their temporary visas expire. Several years later, they are picked up by immigration agents for not leaving when they were required to depart. The government then files charges against them seeking an order of deportation from the Immigration Court.

At that time, if certain requirements are met, their minor child’s citizenship may help them qualify for a defense known as cancellation of removal. This type of case only happens at immigration court.

If they are eligible for a trial before a judge, the hardship to the U.S. born child if the parent is deported becomes a critical issue.

By Carlos A. Batara, Filed Under Q&As: Family-Based Visas And Immigrant Petitions.

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