Become a Permanent Resident Through Your U.S. Citizen Child

Immigrating to the United States through a U.S. citizen child is a legal possibility, but comes with major limitations. The biggest is the child's required age. Only parents of a U.S. citizen who is at least age 21 are considered eligible to immigrate. The good news is, the foreign-born parents will be considered "immediate relatives," thus eligible for lawful permanent residence (a green card) right away. Still, it won't happen overnight. There's a long application process to get through. Once the parents receive U.S. residence, they can live and work in the United States permanently. (See I.N.A. § 201(b), 8 U.S.C. § 1151(b).)

Here, we'll talk about the pathways toward successfully obtaining a green card based on a U.S. citizen child (including the stumbling blocks), with a separate look at the procedural possibilities for parents who:

• are living in the U.S. unlawfully
• living in the U.S. lawfully, or
• are living in another country.

Common Legal and Practical Issues for Parents of U.S. Citizens in Getting a U.S. Green Card

An issue to be considered at the start is that some parents of U.S. citizens are already living in the United States unlawfully, and have already done so for six months or more, due to which they are inadmissible. In other words, they can't be approved for U.S. permanent residence, possibly for as long as 10 years. The parents can potentially cure this by applying for a waiver of inadmissibility, but it involves proving that a qualifying U.S. relative would suffer extreme hardship if their visa were denied; and here's the catch. Only their own spouses or parents count for this purpose, NOT their children. You'd want a lawyer's help to fully analyze this. (Also see Tips for Filing an I-601A Provisional Waiver Application.)

Another issue is that children wishing to sponsor immigrating parents take on a significant financial responsibility for them. The U.S. government will expect the petitioning child to prove that their household income is sufficient to support their own family plus their parents at 125% or more above the U.S. poverty guidelines level. The idea is to show that the parents won't likely become "public charges" (dependent on need-based public assistance or welfare).

Still another issue is that the foreign-born parents must truly intend to live in the United States. A green card is not a travel document. If permanent residents stay outside the United States too long, U.S. border authorities might notice, sooner or later, that they truly "live" somewhere else and have "abandoned" their U.S. residence, and then deny them reentry to the United States.

Issues Concerning Whether Parents Live in the U.S. Unlawfully

It's not uncommon to have families living in the United States where the child is a U.S. citizen but the parent is either an undocumented immigrant or in the United States on a visa. Here's how their status makes a difference.

If Parents Entered the U.S. Unlawfully

It's not uncommon for foreign-born parents to come the United States unlawfully and give birth to a child in the United States (which makes the child a citizen under current law, though the Trump administration is trying to undo this). Or perhaps the parents brought the child from another country, and the child somehow qualified for a green card while the parents did not, then eventually applied for U.S. citizenship (naturalization). Or perhaps a child came to the United States on a visa and eventually became a U.S. citizen, then invited parents to visit in the U.S., and they never got around to leaving.

In any of these cases, the parents need to understand that if their unlawful stay was at least 180 days long, they have become "inadmissible" to the United States for 3 years; and if the unlawful stay was one year or more long, they have become "inadmissible" to the United States for 10 years. See the above discussion of getting a waiver (with the proviso that few are lucky enough to have "qualifying relatives" in the U.S., since their children don't count for this analysis).

What does this ground of inadmissibility mean in practice? If the foreign-born parents perform the final step of applying for a green card (that is, a personal interview with an immigration official) in another country, they will not be allowed to return to the United States for 3 or 10 years (unless they are approved for a waiver of inadmissibility).

Luckily for some parents; namely the ones who entered the United States on a visa or through the visa waiver program (VWP); they will not be required to leave the United States, but can stay and receive their green card through a procedure known as "adjustment of status," which involves attending their interview at a U.S.-based office of U.S. Citizenship and Immigration Services (USCIS). This is true even if they overstayed the visa. The only catch is that they cannot have misused the visa, that is, obtained it simply in order to come to the United States and get a green card.

For more on these differences, see Consular Processing vs. Adjustment of Status.

Parents who entered the United States without inspection are in a less fortunate situation. They are not allowed to adjust status unless they fall into a rare exceptional category, and have no choice but to attempt consular processing if they wish to apply for a green card.

If Parents Are in the U.S. Lawfully

If parents of a U.S. citizen are living in the United States on a valid visa, and their departure date (shown on Form I-94, created by Customs and Border Protection or CBP) has not arrived, they should be able to adjust status as immediate relatives without trouble. That means submitting all their paperwork to and attending their interview at a USCIS office.

The only likely hurdle to this plan is if they committed visa fraud by applying for the U.S. nonimmigrant visa with the idea of gaining U.S. entry in order to adjust status. In other words, if they, for example, applied for a B-2 visitor visa, they are supposed to have truly intended to be tourists. In the ideal situation, they would have only later decided to apply for a green card.

Immigration Prospects for Parents Living Outside the U.S.

For parents of a U.S. citizen who are living outside the United States, and who haven't done anything that makes them inadmissible, the application process to get a green card through a U.S. citizen child should be fairly straightforward.

The parents should expect to complete "consular processing," which means they will submit their paperwork to and attend their visa interview at a U.S. consulate in their home country before coming to the United States on an immigrant visa. Upon entry, they become lawful permanent residents. (The actual green card will arrive some weeks later.)

Paperwork Involved in U.S. Citizen Parents' Application Process

Exactly what process must be followed in getting a green card for parents depends on whether they will be adjusting status or going through consular processing. Both require payment of fees, but the amounts and timing of payments are also different. The actual forms in most cases differ as well, though the information collected is largely the same.

One of the important supporting forms for all applicants to submit is one that the sponsoring U.S. child will need to prepare, known as Form I-864, the Affidavit of Support. Its purpose is for the U.S. citizen child to promise to reimburse any government agency within the United States from which the parents receive need-based assistance over approximately the next 10 years.

Another important part of the process is the medical exam, since people can be found inadmissible to the United States on health grounds. Learn about What to Expect at the Green Card Medical Exam and Vaccination Requirements (and Exceptions) for Green Card Applicants.

For applicants who are living in the U.S. and eligible to adjust status, the process basically involves submitting both an I-130 petition (prepared by the U.S. citizen child petitioner, sometimes called the sponsor) along with the parents' own application on Form I-485, with supporting forms and documents, to USCIS. These materials can be submitted all at once by mail to USCIS, after which the parents will be called in for fingerprinting, and finally an in-person interview at a USCIS office (likely in a major U.S. city).

For consular processing, the child will start off the processing by submitting an I-130 visa petition to USCIS. After that is approved, the case will be transferred first to the National Visa Center (NVC), and then to an overseas U.S. consulate. The parents will fill out various State Department forms. The parents will attend an interview at a U.S. consulate or embassy in their home country.

Immigration Prospects for Adoptive or Step-Parents of U.S. Citizen

If the U.S. citizen child wishes to sponsor an adopted or step-parent for U.S. residence, both are possible. However, the adoption must have been finalized before the child turned 16, and the parents and child must have lived in the same household for at least 2 years.

To sponsor a step-parent, the marriage that created the step-relationship must have occurred prior to the child's 18th birthday. The main other concerns and procedures are as described above.

Getting Legal Help

You could make your life easier by hiring an experienced immigration attorney to handle your immigrant visa case. The attorney can analyze the facts of your case and spot any potential problems, prepare the paperwork, monitor progress toward approval, and if need be, attend the interview with the would-be immigrants. Also see Do I Need a Lawyer to Get a Green Card?.