It’s a frightening time for immigrants. Although previous presidents have deported immigrants in large numbers, many – especially those without criminal records – felt a relative sense of normalcy. But with an administration that is outwardly hostile toward immigrant populations, any comfort previously felt is gone. As Donald Trump attempts to tighten immigration laws and cut down on even legal forms of migration into the United States, it can be difficult to keep up with the changing landscape.
That’s why we have launched the Ask an Immigration Lawyer column. Twice a month, Nubia Willman – a Chicago-based immigration attorney with nearly decade of experience – answers your questions about Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and more. This column is not meant to be construed as legal advice. You should not act upon any information provided without seeking the advice of an attorney licensed to practice law in your state.
Dear Nubia: I have heard of a US citizen child being able to ask for citizenship of undocumented parent once they turn 21. Is that true? Where would I even start to go through with that? My mother’s non-citizenship has devastated me every day, and I need help to know what I can do.
Dear Daughter: These are fearful times, filled with misinformation, and the best way to combat that fear is to arm yourself with knowledge to make sure you’re making the right decision for your family. Generally, a 21-year-old US citizen can petition for their parents to gain stable status in the US, but like all things with immigration, it’s rarely that easy.
When you file a family petition for a parent, you are asking immigration to grant them lawful permanent residency (LPR). But in order to become an LPR, the parent has to show more than just a family connection. They must show they were lawfully admitted into the country. A lawful admission means that at some point in time, the person presented themselves at some official immigration office outside of the US and were inspected by government officials through a series of questions, background checks, etc. If everything went well at the inspection, the person was allowed to enter the country for a limited time. In those cases, the parent may have an easier path to residency.
If, however, someone entered the US without inspection, then they were not lawfully admitted and cannot adjust their status to LPR until they are lawfully admitted. In those cases, they will likely need to return to their home country to be interviewed at their consulate and, if all goes well, they will be lawfully admitted and allowed to stay in the US.
So why not just leave the US and ask to be admitted? Because the US government penalizes people who live in the country without permission. If someone entered the country without inspection, they have been accumulating “unlawful presence.” Accruing more than one year of unlawful presence is a problem because if you leave the country, you trigger a bar that bans you from re-entry for 10 years. Accruing more than 180 days but less than a year triggers a ban of three years. So there may be people who could apply for residency, but don’t because they may not be allowed back in when they leave.
Now, one can see why the pejorative idea of “anchor babies” is not only demeaning, but incorrect. The reality is that many adult citizen children would apply for their parents, but the risks that come with leaving the country are too high.
Of course, there are waivers that a family may be eligible for and there are a few other exceptions to apply for parents who have had applications filed for them in the past or for parents of veterans that are worth investigating.
Daughter, in your case, the best course of action is to find a local immigration attorney or nonprofit (not a notario) to review the immigration history and options for your mom. It’s possible that a family petition is the best way to go or it could turn out that there are other remedies available for your mother. You may also learn that it’s too risky to file, especially now, but knowing your options will empower both you and your family, so it’s worth obtaining a consultation.
Disclaimer: The information on this column is not legal advice. Legal information is not the same as legal advice, which is the application of law to an individual’s specific circumstances. The information provided in this column is not a substitute for and does not replace the advice or representation of a licensed attorney. Although Remezcla goes to great lengths to make sure the information on the column is accurate and up to date, we make no claim as to the accuracy of this information and are not responsible for any consequences that may result from the use of this column.
We recommend that you consult with a licensed attorney if you want assurance that the information on the Remezcla and your interpretation of it are appropriate for your particular situation. You should not and are not authorized to rely on this column as a source of legal advice. The use of this column does not create an attorney-client relationship between Remezcla, its agents, and any user.