Navigating the complexities of U.S. immigration law can be particularly challenging when trying to adjust the status of parents who entered the country unlawfully. This article provides a straightforward overview of the options available, key requirements, and potential challenges involved in filing a green card application for parents in this situation.
Understanding Unlawful Entry
What is Unlawful Entry?
Unlawful entry occurs when an individual enters the United States without inspection or authorization from immigration officials. This often involves crossing the border illegally.
Why It Matters
The manner of entry is critical in immigration cases because it affects eligibility for various immigration benefits, including adjustment of status (AOS), which is the process of applying for a green card from within the United States.
Immediate Relatives and Eligibility
Who Qualifies as an Immediate Relative?
In U.S. immigration law, immediate relatives include spouses, children under 21, and parents of U.S. citizens. U.S. citizens aged 21 or older can petition for their parents to obtain a green card.
The 245(i) Exception
One notable exception that may apply is Section 245(i) of the Immigration and Nationality Act (INA). This provision allows certain individuals who entered unlawfully or overstayed their visa to adjust their status if they meet specific criteria, including having a qualifying petition or labor certification filed on their behalf on or before April 30, 2001, and proving physical presence in the U.S. on December 21, 2000.
The Provisional Waiver Process
What is a Provisional Waiver?
For parents who do not qualify for AOS due to unlawful entry, a provisional unlawful presence waiver (Form I-601A) may be an option. This waiver forgives the period of unlawful presence in the U.S. that would typically result in a bar from re-entering the country.
Steps to Apply for a Provisional Waiver
- File an Immigrant Petition (Form I-130): The U.S. citizen child must first file Form I-130 to establish the parent-child relationship.
- Approval and National Visa Center (NVC) Process: Once Form I-130 is approved, the case is transferred to the NVC, where the applicant begins consular processing.
- Submit Form I-601A: The parent can then apply for the provisional waiver. This form requires demonstrating that denying re-entry would cause extreme hardship to a U.S. citizen or lawful permanent resident (LPR) spouse or parent of the applicant. It’s important to note that children, whether U.S. citizens or LPRs, are not considered qualifying relatives for the purpose of this waiver.
- Attend Consular Interview: If the waiver is approved, the parent must attend an interview at a U.S. consulate or embassy abroad.
Risks and Considerations
Risks of Leaving the U.S.
Applying for a provisional waiver involves leaving the U.S. to attend a consular interview, which carries inherent risks. If the waiver is not granted, the individual may face extended periods of separation from their family.
Legal Assistance
Given the complexities and potential consequences, it is highly advisable to seek assistance from an experienced immigration attorney who can provide guidance tailored to the specific circumstances of the case.
Conclusion
Filing a green card application for parents who entered the U.S. unlawfully is a complex process fraught with legal hurdles. Understanding the available options, such as the 245(i) exception and the provisional waiver process, is crucial. Working with an experienced immigration attorney can significantly improve the chances of a successful outcome, ensuring that the process is handled correctly and efficiently.
My name is Daven Ghandi, and I’m a U.S. immigration lawyer and the founder of KAZA Law. In this article, we discussed the challenging process of filing a green card application for parents who entered the U.S. unlawfully, including key options like the 245(i) exception and the provisional waiver process. If you have any further questions about these topics, or any other immigration-related queries, feel free to schedule a free consultation by clicking this link.
Kaza Law PLLC
This article is general education, not legal advice. Every case turns on its specific facts. If you want guidance on your own situation, reach out and we will look at it with you.