Be Sensitive to the Immigration Status of Your Children
Posted Nov 15, 2002

As a public service to MurthyBulletin readers and visitors to MurthyDotCom, we periodically provide advisories on potential problem areas regarding immigration and alert our readers to be cognizant. An issue that has recently has come to our attention is that of "unlawful presence" and immigration law changes with respect to individuals over the age of 18 years. Unfortunately, there is a tendency of these young adults not to take control of their own immigration cases until their early 20s. Under current law, there may be, by that point, insurmountable problems if one is unlawfully present for certain periods of time.

The definition of unlawful presence, also referred to as a period of stay not authorized by the Attorney General, is complex and there are various INS memos on this subject. Generally, unlawful presence involves being in the U.S. after entering without inspection, or after staying past the expiration date on an I-94 card, but there are a variety of special situations as well. For individuals in F-1 and J-1 statuses whose I-94 cards indicates "D/S" (duration of status), overstays do not qualify as unlawful presence unless the INS or an Immigration Judge makes an actual determination that the person has overstayed. Then, from that date, the person is deemed to start accruing unlawful presence. At the AILA Annual Conference in June 2002 in San Francisco, the INS had mentioned that they are in the process of reconsidering their definition of unlawful presence in the near future.

In the United States, most of benefits of becoming an adult are conferred on individuals once they turn 18 years old. This seminal point in the U.S. citizen's life is also a crucial turning point for many non-citizens. INS recognizes that a person under 18 may not have responsibility for his/her status. Accordingly, INS regulations provide that a person under 18 does not accrue unlawful presence, even if s/he is out of status. However, like Cinderella's transformation at midnight, the clock can start ticking on unlawful presence as soon as the child becomes an adult at 18 years of age. Therefore, awareness of one's status and taking full responsibility to correct one's status must start immediately upon reaching 18 and becoming an adult under U.S. law.

For these reasons, we take this opportunity to remind parents to be mindful of their children’s statuses and to educate them about these issues. We have seen a number of situations in which parents have brought their children to the U.S. and have left them with relatives or in schools without obtaining proper immigration status. Sometimes the parents have returned to their home countries, leaving their children here. Others remain in the U.S., but have their own immigration problems and have not been able to maintain lawful status nor become permanent residents or U.S. citizens, themselves. These children are in a particularly precarious situation when they turn 18 and often have no understanding of immigration issues. They may have little or no knowledge of what immigration paperwork, if any, their parents have filed and the outcome of any such applications.

Children whose parents have lawfully entered the U.S. and have been able to maintain their status are in a far better situation. Children of parents with valid nonimmigrant status are generally eligible for a derivative status category until 21years of age. For example, a child with parents on H-1 status may remain in H-4 status until age 21. For these individuals, 21 is a more significant age than 18. There is a very limited group of categories (A, sometimes G) in which children can possess derivative status beyond 21, provided they remain part of the household. However, for most nonimmigrant statuses, the end point for children is 21. At that time, if the child wishes to remain in the U.S. s/he must secure and maintain his/her own status. This matter should be addressed well in advance of the 21^st birthday in order to plan ahead and take any needed action.

Once the clock ticks to 180 days of unlawful presence, a trip outside the U.S. will result in a three-year bar to reentry. A year of unlawful presence and a departure from the U.S. means a ten-year bar. These restrictions are key considerations because, for individuals who are not in status and/or are unlawfully present, the solution to their problem often requires a trip out of the U.S., followed by a lawful return. Once the 3/10-year bar is in place, the ability to “fix” the problem via departure and reentry, for most people, is lost. [There is a waiver available for this bar. However, there are fairly narrow eligibility requirements that must apply and the INS' granting of this waiver is a purely discretionary matter.]

Therefore, it is key for one to assess status issues by the 18^th birthday at the latest. On a favorable note, children may be included as derivative beneficiaries in their parents’ permanent immigration cases until age 21. The Child Status Protection Act also made favorable changes to the law with respect to the time at which the child’s age was measured. These changes may prevent many of the problems previously experienced when children turned 21 before their parents’ green card cases were approved; a situation referred to as “aging out.”

It is important that older children have access to copies of all relevant immigration documents filed by their parents or on their behalf. An inability to obtain such documents presents great difficulty in and of itself in some cases. These documents are needed in order to assess the situation and to provide information needed if there are future problems.

Anyone with uncertainties regarding these issues should contact a qualified immigration attorney. For those who do not have an attorney, consultation options to speak with an attorney at The Law Office of Sheela Murthy are available by eMailing <law@murthy.com> or clicking on Consultation on the MurthyDotCom homepage.