The U.S. immigration system provides temporary visas to people who come for a few months or years (such as visitors or temporary workers). A parallel but separate set of classifications applies to persons who wish to become permanent U.S. residents–holders of “green cards” (also called permanent resident cards).
There are two groups of people who can qualify for a green card – certain long-term employees and people who have family ties to someone already a permanent resident or citizen. In a family-based category, the U.S. citizen or legal resident sponsors a foreign national family member or relative. U.S. immigration laws recognize that children are integral to the family unit, and a petition may be submitted to allow them to immigrate to the U.S. legally.
Obtaining a family-based permanent residence visa is very difficult – not everyone can qualify for one – and it can take years to accomplish. For example, a spouse or child of a U.S. permanent resident has the right to obtain permanent residence for themselves, but as of July 2023, the applicant must have applied for permanent residence before October 2017.
The wait for some permanent residence applications is even longer – they are now processing applications from married sons and daughters of U.S. citizens that were filed before January 2009.
It is sometimes the case that undocumented people (often referred to as illegal aliens or illegal immigrants) immigrate to the U.S. with their undocumented children.
Failure to properly apply for permission to lawfully reside in the U.S. has legal consequences. For example, Illegal immigration by undocumented parents with their undocumented children can sometimes result in the separation of families through the process of deportation.
What If I Am A Child of an Undocumented Person?
If your parents illegally immigrated here with you as a child, you are subject to the same legal consequences as your parents. However, if you were born here to undocumented parents, you are automatically a U.S. citizen with all the constitutional rights of other U.S.-born citizens. As a U.S. citizen, you can apply for a green card for your parents under the family preference immigrants classification. However, your parents will have to wait outside the United States for the visa application to be processed, and the wait is very long – currently, it is 6 years.
During this time, your parents are still subject to removal (deportation) for their illegal presence in the U.S. An order of removal can be canceled if the removal judge finds some well-articulated evidence that removing your parents would create some “exceptional and extremely unusual hardship” to you as a U.S. citizen (or lawful permanent resident).
To qualify for cancellation, your parents must be able to demonstrate they have been continuously physically present in the U.S. for ten years, are of good moral character, and that they have not been convicted of certain crimes or violated certain laws. If successful, the judge may award your parents legal permanent status.
If you were not born here, however, you are still considered undocumented and must have a family member or relative who is a U.S. citizen or lawful permanent resident apply for a visa. Until you have become a lawful permanent resident, you do not have the right to work or live in the U.S. and may be subject to deportation at any time.
Can I Remain in the U.S. Legally Even If I Arrived Illegally as an Asylee or Refugee?
You can stay in the U.S. if you have been granted asylum or refugee relief. If you are unable or unwilling to live in your country of nationality because of persecution (or a well-founded fear of persecution) due to race, religion, nationality, membership in a particular social group, or political opinion, you may be granted refugee status.
An asylee is a person who meets the definition of a refugee and is already present in the United States or is seeking admission at a port of entry. If you are granted refugee or asylum status, you are required to apply for a green card one year after entering the United States. Note that being granted asylum does not automatically make you a permanent resident. You must still apply for an adjustment of your status to that of a permanent resident.
Can I Remain in the U.S. Legally Even If I Arrived Illegally Under the Deferred Action for Childhood Arrivals Program?
There is, or was, another program designed to allow certain undocumented aliens to remain in the United States. In June 2012, the Deferred Action for Childhood Arrivals (DACA) Act was enacted to allow young undocumented children to apply for limited protection from deportation. The program does not grant them official legal status or a pathway to citizenship but allows them to apply for a driver’s license, a social security number, and a work permit. It also allowed children of undocumented parents to achieve their dreams of attending college.
Of note, DACA does not limit the deportation of the parents, only the children.
You qualify for DACA if:
- You were a child under the age of 16 when you arrived in the U.S.
- You are under the age of 31
- You have continuously lived in the U.S.
- At the time you apply for deferred action, you are either in school, have already earned a high school diploma, or have been honorably discharged from the armed forces
- You have not been convicted of a felony or a serious misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety
DACA has been controversial. It was instituted under the Obama administration as an executive order, but the Trump administration decided to phase it out and did not allow any new applications.
A federal court upheld the administration’s decision to halt applications but also ruled that those who had already been granted DACA status have the right to renew their visas for two years at a time. As the program stands now, the Department of Homeland Security will continue adjudicating applications for renewals for those previously granted deferred action.
The Biden administration has persistently attempted to renew the program but without legislative or legal success. As of July 2023, no future hearings have been set to confirm DACA’s status. The Biden administration has stated it will continue to protect the program and call on Congress to pass legislation solidifying its permanent status. If a judge ends the program, the administration plans to appeal to the U.S. Supreme Court.
Should I Consult an Attorney If I Entered the U.S. as an Undocumented Immigrant?
If you are an undocumented child, you may be subject to deportation at any time. It is best to consult with an attorney before declaring your status. A local immigration attorney will help explain the best way to apply for lawful permanent status.
