When a person enters the U.S. without inspection (that is, without a visa or permit) and later has a U.S. born child, the parent often wonders if he/she can obtain a green card through that child.
Unfortunately, the immigration laws do not allow the parent who entered without documents to simply obtain a green card when the child turns 21-year-old, rather, it requires a waiver for the illegal entry and depending on the facts of the case, departure to the home country to “consular process” the immigrant visa.
The catch, however, is that the waiver cannot be based on the U.S. born child and must be based on another “qualifying relative” (QR). Said relative can be a U.S. citizen or legal permanent resident spouse or parent, but again, it cannot be based on the U.S. citizen son or daughter.
The waiver asks that you—as the applicant for a green card, show that your QR will suffer extreme hardship if you are not permitted to immigrate to the U.S. How does one show extreme hardship to the family member?
An immigration officer will look for more than just the waiver application; rather, the waiver must be supported by documentary evidence. The type of evidence that you will want to present to the immigration officer is evidence that shows not only the relationship between you and the QR but also, evidence to support that without you in that person’s life, his or her life will be severely affected, that they will suffer tremendously. It is important to document any health issues the QR may have, as well as their family ties to the U.S., financial hardship, difficulty relocating with you to your home country and the list goes on. The more documentary evidence supporting your waiver the more likely it is to get approved.
The law is not that kind, unfortunately. The relief requiring 10 years of physical presence in the U.S. also requires that you show good moral character and that your “qualifying relative” will suffer extreme and unusual hardship. A qualifying relative is one of the following: US citizen parent or lawful permanent resident parent, US citizen or lawful permanent resident spouse, or US citizen or lawful permanent resident child (under age 21). The requirement to show “extreme and unusual hardship” is where most cases fail. It must be shown that the qualifying relative will suffer tremendously if you are deported. Evidence in the form of medical records is essential. The case must be fought in immigration court and it is up to a judge to determine if you meet all requirements. If you win, you win a green card.
It depends on several factors such as your manner of entry into the U.S. and whether you have violated the terms of any lawful entries, assuming there is a lawful entry. There may be a need for a waiver where a violation of the immigration laws has occurred. In cases where you entered the U.S. through the hills or what’s known as “without inspection”, you will need a waiver and will require a short trip abroad to process your immigrant visa (green card).
The immigration law provides protection for people who can show they have a fear of persecution if they return to their home country and that they meet certain other criteria that an asylum officer or judge must consider in granting asylum protection. The applicant of asylum must provide testimonial evidence as well as any reasonably available evidence to show she will be persecuted on the basis of her race, national, religion, political opinion or membership in a particular social group. Asylum law is complex but a successful case will result in asylee status and a year later you will be eligible to adjust your status to lawful permanent resident (green card holder).
The immigration laws provide work authorization in limited circumstances. A person must qualify for a type of relief or benefit in order to be issued a work permit. You cannot obtain a work permit without first qualifying for a type of benefit. Having children born in the U.S. is not a grounds for a work permit.