Immigration Rumor : The Benefits of Parenthood
Posted May 24, 2002

We previously discussed the fact that marrying a U.S. citizen does not "automatically" grant immigration status <http://www.murthy.com/UDirlove.html>. In our continuing effort to dispel rumors and general misunderstandings in the area of immigration law, we now address the issue of children and the role that they play in immigration benefits and relief.

It is a common misconception that people believe themselves able to obtain immigration benefits through their minor, U.S. citizen children. If it was this easy, most couples of childbearing age could have a green card within nine months or so. The truth is that minor children cannot petition for their parents' green cards. Only U.S. citizens 21 years of age or older can petition for their parents. The parents of adult U.S. citizens over 21 years old fall within the privileged class of "immediate relatives" and therefore are not subject to limitations on the numbers of available visas. That is, they do not have to worry about priority dates.

One potential problem, however, is that the petitioning son or daughter must show financial ability to support the parent/s by filing the I-864 (Affidavit of Support) with 3 years of tax returns to the INS or the consular officer. Individuals in their 20's often cannot meet the financial requirements. If the son or daughter is unable to satisfy the financial requirements for sponsorship, a joint sponsor may be used. Assets can be used in lieu of income in some situations

MurthyBulletin and MurthyDotCom readers may be more familiar with this process from the opposite side, as they petition for their own parents to come to the U.S. As many have discovered, permanent residents cannot sponsor their parents, as there is no immigration classification to do so.

This is not to say that U.S. citizen and permanent resident children under 21 are completely disregarded in the area of immigration relief. Certain waivers and forms of relief exist in removal (formerly known as deportation) proceedings in the event an individual has to leave or cannot enter the U.S. These require proof of significant levels of hardship to immediate family members who are permanent residents or U.S. citizens. Essentially, when one faces serious immigration problems, hardship to children is taken into account in determining certain types of immigration relief. Each type of waiver is under a particular provision of law that specifies the relatives who can be regarded as "qualifying relatives" and the level of hardship that must be demonstrated. Children do not always qualify. In some types of cases, only hardship to a U.S. citizen or permanent resident spouse or parent is taken into consideration.

An example of a hardship waiver is that of the two-year home return requirement for J-1 holders. Many persons on J-1 visas are subject to a requirement that they return to their home countries for two years at the end of their period of authorized stay. It is possible to request a waiver of this requirement based on "exceptional hardship" to a U.S. citizen spouse or child. The level of hardship that must be established to succeed in obtaining an approval of this waiver is far beyond the ordinary hardship that occurs when families are separated.

In the removal context, a form of relief known as "Cancellation of Removal and Adjustment of Status to Permanent Residence" (used by persons who are not permanent residents) may be available to individuals who have been physically present in the U.S. for ten years and can show, among other things, that their removal from the U.S. would result in "exceptional and extremely unusual" hardship to their U.S. citizen or permanent resident spouse, parent/s, or child/ren. A second type of Cancellation of Removal is available for persons in removal proceedings who have resided in the U.S. for seven years and have been permanent residents for at least five years. This form of relief balances certain positive factors against negative factors. On the positive side is the applicant's ties to the U.S. A U.S. citizen or permanent resident child is one of the most important family ties that would be considered in whether to grant the application.

So, people do not receive green cards simply by giving birth to their children in the U.S. But the welfare of these children is taken into consideration to a limited extent when the parent faces immigration difficulties.