Wilson Law Group is separating fact from fiction in a series of blogs clarifying some common misconceptions in immigration law. We hope you find our clarifications helpful. One common misconception is that a parent becomes automatically eligible for permanent residency once his/her child turns 21 and files a petition for the parent. We wish it were that simple, but it is more complex. To be clear, having a U.S. citizen son or daughter - even if s/he is 21 years old - does not automatically mean the parent is eligible for permanent residency in the U.S. A parent certainly may be eligible for residency based on a petition by their U.S. citizen son or daughter in certain situations, but there are important factors that must be evaluatedbefore taking any action.
One important factor is unlawful presence. Generally speaking, if the parent was not inspected and admitted to the United States and does not qualify under ‘245(i)’ (generally meaning that a visa petition or labor certification was not filed for the parent on or before April 30, 2001), it will be necessary for the parent to apply for an immigrant visa from the embassy outside the United States. However, the parent will need a waiver of inadmissibility if s/he had accumulated a certain amount of time of unlawful presence in the United States before applying for residency.
Importantly, an applicant is only eligible for a waiver of unlawful presence if he or she can establish extreme hardship to a permanent resident or US citizen spouse or parent. Significantly, a U.S. citizen child is not a qualifying relative for purposes of an unlawful presence waiver. This means that a parent who must consular process abroad and is inadmissible for unlawful presence cannot apply for a waiver based on his/her U.S. citizen son or daughter. A parent in this situation can only qualify for the waiver if s/he has a resident or U.S. citizen spouse or parent.
This is one of the reasons why it is so important to evaluate your eligibility and options for permanent residency before filing paperwork with the immigration office. Wilson Law Group has helped countless of individuals obtain permanent residency in the U.S. based on family member petitions, and will be happy to evaluate your particular situation to review if you or a loved one qualifies. We invite you to contact our office for a free consultation by calling our main number at 612-436-7100 or through our website.