If you have a U.S. citizen child over the age of 21, he or she may petition for you to immigrate to the United States as an immediate relative. Before asking your child to file a petition on your behalf, you should make sure that you are eligible to adjust status after USCIS approves the petition.

If you are living in the United States and you entered without inspection, you will have to consular process from abroad to obtain your green card after your child petitions for you. If you have been unlawfully present in the United States for more than 180 days, your departure from the United States to complete the immigration process can trigger a 3 or 10-year bar to admission depending on the length of the period you were unlawfully present. This means that you will not be able to apply to return to the United States for either 3 or 10 years unless you qualify for an unlawful presence waiver.

To qualify for an unlawful presence waiver, you must prove that a “qualifying family relative” will suffer “extreme hardship” if the applicant is not admitted to the United States. Extreme hardship may include medical, financial, emotional, educational, and professional hardship or a combination of these factors.

So, which family members are qualifying relatives? The unfortunate catch is that, while your child can petition for you, he or she can’t help you qualify for the unlawful presence waiver. Only a spouse or parent is a qualifying relative for the purpose of the waiver.  

If your spouse or parent is a U.S. citizen, you are eligible for a provisional unlawful presence waiver. As we explained in an earlier post, the provisional unlawful presence waiver allows applicants to remain inside the United States while U.S. Citizenship & Immigration Services (USCIS) determines whether they are eligible to waive inadmissibility based on the 3/10 bar for unlawful presence. Successful waiver applicants must still return to their home countries to continue the immigration process through the U.S. consulate; however, the time they must spend abroad is typically reduced to a few weeks rather than several months, and the risk of being denied admission to the United States is minimized.

If your spouse or parent is a lawful permanent resident, you must apply for the traditional unlawful presence waiver, which is adjudicated while the applicant is abroad.

Under current law, U.S. citizen and lawful permanent resident children are not qualifying relatives for the purpose of the unlawful presence waiver. Therefore, if you have an adult child who wants to petition for you, make sure to consult the experienced immigration attorneys at Wilson Law Group before you travel outside of the United States for the purpose of completing the green card process to avoid being stranded abroad without a waiver option.