Getting a Green Card Through Your Children

One of the hopes of many foreign nationals is to become an American citizen or obtain permanent resident status (Green Card) by having a child on U.S. soil. While it’s true that anyone born on United States soil is automatically a U.S. citizen (an exception applies for the children of foreign diplomats), this does not allow the parents of a child born in the United States to automatically obtain a Green Card. Like many other immigration procedures, obtaining a Green Card through a child is a complex and involved process and one you should pursue with your immigration attorney or lawyer.

• New York Immigration Lawyers: From Visas to Green Cards and Naturalization
• Visa Overview: Understanding Visas
• Types of Visas for Foreign Nationals in the United States
• Securing a Green Card and Permanent Residence
• Becoming a United States Citizen through Naturalization
• Criminal History and Your Immigration Application
• Arrest and Convictions: Immigration Consequences Resource Page

Getting a Green Card through Your Child: General Requirements

To have a child petition (sponsor) for your Green Card, your child must be:

• A U.S. citizen, and
• 21 years of age or older

This means if your child only has a Green Card or is under 21 years of age, they cannot sponsor you for your Green Card.

My Child is a US Citizen and at Least 21 Years Old. Now What?

Your child, as your sponsor, will complete Form I-130, Petition for Alien Relative. This form will show immigration officials that your sponsor really is your child.

• Immigration Form I-130: The Importance of Accurately Completing Immigration Forms

The next step will depend on whether you’re already in the United States and if you are, if you are here legally or illegally.

If you are already in the United States legally, you will need to complete Form I-485, Application to Register Permanent Residence or Adjust Status. In addition to completing this form, you will need to provide supporting forms and documents, including Form I-864, Affidavit of Support and Form I-693, Report of Medical Examination and Vaccination Record. Generally speaking, when you submit Form I-485, you child can submit Form I-130 at the same time.

• Immigration Form I-485: The Importance of Accurately Completing Immigration Forms
• Immigration Form I-864: The Importance of Accurately Completing Immigration Forms
• Immigration Form I-693: The Importance of Accurately Completing Immigration Forms

After the necessary forms and documents are submitted, you or your immigration attorney will arrange for your fingerprints to be taken and for a personal interview with a US Citizenship and Immigration Services officer. Assuming you properly prepare with your immigration attorney for this interview and everything checks out, you will get your Green Card.

If you are not in the United States, you won’t be able to use Form I-485 and the adjustment of status procedure. Rather, you’ll go through consular processing. This means you will wait overseas until your child’s submission of Form I-130 is approved. Once that’s done, your Green Card application will be sent to the National Visa Center (NVC).

The NVC will notify you when you need to pay the applicable visa fees and submit any supporting documentation. The information needed by the NVC will essentially be the same as if you were completing Form I-485, including an Affidavit of Support (Form I-693). The NVC will also schedule a personal interview at a US consulate or embassy where a consular officer will determine if you are eligible for a visa. Assuming you are eligible, you will then travel to the United States and become a permanent resident after you are officially admitted entry into the United States.

How is the Process Different if I’m in the United States Illegally?

This is a tricky question for which there is no simple answer. It is critical that you speak with an experienced immigration attorney to fully understand what your options are and what you need to do. However, there are some general concepts to keep in mind.

There’s a difference between “unlawful status” (sometimes referred to as “out of status”) and “unlawful presence.” The difference can be complicated, but basically, unlawful presence refers to being in the United States when you’re officially no longer allowed to be, such as overstaying your visa.

Unlawful status is not as “bad” as unlawful presence, because there is no running of a “clock” while in unlawful status due to other factors that affect the individual’s right to stay in the United States. For instance, during the time an individual appeals the denial of a petition, they will be in unlawful status rather than deemed unlawfully present. This is important because how long a person has been unlawfully present in the United States will affect the time it takes to obtain a Green Card.

For example, if you were unlawfully present in the United States for between six months and one year, you will need to return to your home country and wait three years before you will become eligible for a Green Card. However, if you were unlawfully present in the United States for one year or more, you will have to wait 10 years before you’re eligible to apply for a Green Card.

In contrast, if you were unlawfully present in the United States for less than 180 days, you will not be deemed legally inadmissible and therefore, the three or 10 year time bars will not apply to you. Having an unlawful presence for as little time as possible can mean the difference between getting your Green Card through the normal application process or having to wait three or more years.

What if My Children Are Adopted or Step-Children?

If your children are adopted or are step-children, it does not change your ability to obtain a Green Card. However, there are two requirements that aren’t present if it’s your biological child sponsoring you.

If you sponsor is a step-child, you will have to show that the step-relationship was formed before your step-child turned 18. In other words, you’ll need to show that you married your step-child’s parent before your step-child turned 18. If you sponsor is an adopted child, you will have to show that your child’s adoption took place before he or she turned 16.

Securing a Green Card and Securing a Future

Immigration law is complicated. While there are countless laws, different presidents and administrations enforce and alter immigration policy in various ways. Do not miss an opportunity to keep your family together in the United States. Failure to ac today may mean loss of a Green Card opportunity tomorrow.

Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.