Recently a man came into our office to discuss his immigration case. He was very excited and confident that now was the time he would be able to file for his permanent residency. He explained to me how he had been in the US for over twenty years. He had several children born here, and the oldest had just turned twenty-one and was now old enough to petition him.
As we have mentioned before, children who are over the age of twenty-one and are US citizens can file a petition for their parents. However, a problem exists in many of these cases if the parent is residing unlawfully in the US. If the parent entered the US with a visa, or had a petition filed on their behalf under 245i prior to April 30, 2001, then they can apply for a green card here in the US through their child without having to leave the country. If they do not qualify under either of those two things, then the only option is to leave the country because they require a waiver for being here unlawfully.
The problem is that a person cannot apply for a waiver through a child, ONLY through a permanent resident or US citizen spouse or parent. So if the person applying did not enter with a visa and did not apply under 245i, the only way their child can help them is if they also have a spouse or parent who is a permanent resident or US citizen so that they can separate apply for a waiver. This is something that has caused a lot of confusion, and many people have filed the application thinking that they would get their green card. They depart the US and attend an interview at the embassy in their home country only to discover that they cannot qualify for the waiver and are subject to a ten year punishment.
The man in our office understood the need to qualify under 245i in order to apply through his son. He carefully explained to me that he had a prior petition in 2000 through a notario. However, when he showed me the papers to prove that he was protected under 245i, he presented an application for late amnesty. This was an application available to many people at the time, but it does not qualify someone under 245i. To qualify under 245i it just have been a employment-based petition, family-based petition, or an I-360 petition. Other petitions, like amnesty, do not qualify.
This man had spent the last 14 years believing that he qualified for 245i and that all he needed was for his son to turn 21. It was a very sad and difficult moment when he realized that he could not apply through his son, because he was not 245i and he did not have a spouse or parent who could allow him to apply for the waiver. This could probably have been avoided if back in 2000 he had sought out proper legal advice from a licensed and qualified immigration attorney. Remember, to ensure that you are properly applying and that you qualify, always seek the advice of a professional to ensure everything is done correctly and that you truly qualify for the benefit being sought.
The attorneys at Wilner & O’Reilly have years of experience and knowledge with immigration matters. With former immigration officers and board certified immigration specialists, we can properly advise you regarding all immigration matters. Call us for a Free consultation at 714-919-8880.