Answer By law4u team
An immigrant who is detained may have the possibility of applying for a green card through their U.S. citizen child, depending on various factors, such as the child’s age and the immigrant’s legal circumstances. The family-based petition process offers a potential avenue for relief from deportation, but it involves a set of legal steps and potential obstacles.
Steps to Apply for a Green Card Through a U.S. Citizen Child:
Eligibility Requirements:
The immigrant must be the parent of a U.S. citizen who is at least 21 years old. A child under 21 cannot petition for a parent’s green card.
The detained immigrant must not be barred from applying for a green card due to other legal issues, such as prior immigration violations, criminal convictions, or other inadmissibility issues.
Filing the Family-Based Petition:
The U.S. citizen child (age 21 or older) can file a Form I-130, Petition for Alien Relative, to establish the parent-child relationship.
The detained immigrant will need to work with legal counsel to ensure the petition is properly filed and to address any issues related to their detention status.
Adjustment of Status (Form I-485):
If the immigrant is in the U.S. and eligible, they may apply for an adjustment of status (Form I-485) to change their immigration status to that of a lawful permanent resident (green card holder).
The detained individual may apply for a green card while in detention, but this will require navigating the detention center’s restrictions and working with the immigration court and ICE.
Waivers of Inadmissibility:
If the immigrant has been in the U.S. unlawfully or has certain other inadmissibility issues, they may need to file a waiver (Form I-601 or I-601A) to overcome these barriers and proceed with the green card application.
Attend Immigration Court Hearings:
If the detained immigrant is in removal proceedings, they will need to present their green card application before an immigration judge. The judge will decide whether to grant the adjustment of status based on the family petition and other legal factors.
Challenges and Limitations:
Age of the U.S. Citizen Child: Only children who are at least 21 years old can petition for their parents. If the U.S. citizen child is younger, the immigrant cannot apply for a green card through them until they reach 21.
Immigration Violations: If the detained immigrant has a history of immigration violations (e.g., overstaying a visa, entering the U.S. illegally), this can complicate the process. A waiver may be necessary.
Detention Status: Being in detention can delay or complicate the application process. The immigrant may need to seek release from detention through bond hearings or other means to attend interviews or complete paperwork.
Deportation Risk: If the immigrant is in removal proceedings, they may face deportation while waiting for the green card process to complete, unless they are granted temporary relief.
Legal Protections and Options:
Cancellation of Removal: If the detained immigrant has a U.S. citizen child and has been in the U.S. for a long time, they may be eligible for cancellation of removal, which can lead to permanent residency even without a green card petition.
Deferred Action for Childhood Arrivals (DACA): In some cases, a detained immigrant may be eligible for deferred action or other forms of temporary relief from deportation while their green card application is processed.
Legal Counsel: Given the complexity of immigration law, detained immigrants should work with a qualified immigration attorney to guide them through the petition and adjustment process.
Example:
A detained immigrant whose U.S. citizen child is 22 years old can have their child file a Form I-130 petition for them. Afterward, they can apply for an adjustment of status through Form I-485. If the detained immigrant has overstayed their visa or entered without inspection, they may need to seek a waiver for inadmissibility issues. Throughout the process, they will need to attend hearings in immigration court, and the legal complexities of their detention status may require additional support from an attorney to ensure the best chance of success.
