Debunking Misconceptions About Green Card Eligibility: What Happens When a Child Turns 21?

In the world of immigration, there’s a common misconception that when a child turns 21, their parent automatically qualifies for a green card. This originally started after the US had a significant increase in immigration during the mid-1990s when false claims floated around that having US citizen children basically guaranteed access to benefits and green cards. Now that those children are reaching adulthood, parents are hoping to have their children petition for them and sponsor them for green cards. However, the reality is more complex than simply having a US citizen child who is now at least 21.

This blog explores the realities behind these beliefs and discusses the various scenarios that affect a parent’s eligibility for lawful permanent residency in the United States.

Petitioning for a Parent

While it’s true that a child can file an I-130 petition for their parent, it doesn’t guarantee eligibility for a green card. The I-130 only proves the relationship between the parent and the child and provides no further immigration benefits or status. Any USC child can file the I-130 for their parents, regardless of whether the parent is eligible for any other immigration benefits or what their immigration history in the US may be.

To be eligible for further benefits, such as a green card, the parent’s immigration history, visa type, and specific circumstances play significant roles. Below, we explore the different scenarios of parents with USC children and the available pathways for those circumstances.

Scenario 1: Lawful Entry and Continuous Residence

If a parent entered the US lawfully and maintained continuous residence, their child turning 21 does provide a pathway for green card eligibility. After the I-130 is approved, the family can move forward with the adjustment of status process. This scenario typically involves straightforward processing without significant hurdles or waivers needed.

Scenario 2: Lawful Entry with Overstay

If a parent entered the US lawfully but overstayed their visa, they are still eligible to apply for a green card. In this case, the parent must have only had one overstay since the lawful entry. If there was an overstay, departure from the US, and subsequent lawful re-entry, that might make the parent ineligible for a green card (this scenario is highly unlikely, though). 

Scenario 3: Single Unlawful Entry 

If a parent entered the US unlawfully once, they face the ten-year bar, with the potential option for a waiver of forgiveness.

Most people who enter the United States unlawfully must return to their home country and obtain an immigrant visa. However, if someone has been in the United States unlawfully for more than 365 days, they have a ten-year bar from returning. The only way around this bar is an I-601A or I-601 waiver for unlawful presence. To be eligible for a waiver, the immigrant has to have a USC or permanent resident spouse or parent. Simply having a USC child does not qualify someone for the required waiver.

Scenario 4: Multiple Unlawful Entries

If a parent entered the US unlawfully multiple times, they face the ten-year bar with no waivers. This means that the parent will have to leave the US for the duration of the ten-year bar and, only after ten years, apply for an an immigrant visa abroad.

Scenario 5: Inadmissibility Grounds and Limitations

Certain grounds of inadmissibility may make it so a parent is ineligible for a green card, regardless of their child’s sponsorship. These limitations include issues such as criminal convictions or previous immigration violations that cannot be remedied through family-based petitions.

Assessing Eligibility Now, Not Later

It’s important to understand that petitioning for a parent through the I-130 form only establishes the relationship between the two individuals. Actual eligibility for a green card relies on various factors, including criminal and immigration history, as well as existing exemptions and waivers.

If you face the ten-year bar, it is better to know that information at your child’s birth, so that you can make an informed decision about how to spend the next 21 years of your life. Waiting until your child is eligible to petition may result in missed opportunities or unforeseen challenges.

Consulting an Attorney

To navigate these different scenarios, it’s advisable to consult an immigration attorney to identify which scenario you fall into and what your options are going forward. Assessing options and understanding which scenario applies now can prevent complications down the road. Whether exploring sponsorship options or alternative immigration pathways like U or T visas, seeking legal counsel ensures that you have all the information. Remember, knowledge is power, and being able to make informed decisions and pursue the most suitable path toward securing your immigration status comes from knowing your options as soon as possible. 

If you are an immigrant family with USC children and would like to discuss your options for achieving lawful permanent residence, we would love to talk with you!

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