Will Having U.S. Citizen Children Prevent Deportation of Undocumented Immigrant?

For many non-citizens who either cross the southern U.S. border illegally or overstay a visa, settling down and giving birth to children might be natural next steps in their family's life. A baby who is born in the U.S. becomes a U.S. citizen automatically. But does that mean that the parents receive any added rights to immigrate to the U.S.; in particular, to avoid removal (deportation)?

The answer is not a simple one, for the reasons laid out below.

Parents of U.S. Citizens Cannot Apply for U.S. Lawful Permanent Residence (a Green Card) Until the Child Turns 21

U.S. immigration law allows U.S. citizens to petition for their parents (among other family members) to receive green cards; but only after the U.S. citizen child turns 21. Staying in the United States without legal permission for all that time could be difficult and lead to negative immigration consequences.

Leaving the U.S. with the child is the safer option, if one is willing to embark on a long-term plan of having the child return as an adult and then petition for the parents. But since the subject of this article is whether the U.S. citizen child can help the parents avoid deportation, that's a topic that we're assuming isn't as relevant or attractive to readers.

Parents Who Entered the U.S. Illegally and Stayed Might Now Be Inadmissible

Anyone who entered the U.S. illegally (without inspection) faces further complications in seeking to obtain a green card through family.

When the child turns 21 and petitions for them, they won't be able to stay in the United States to complete the green card application through the process known as "adjustment of status." (Only parents of U.S. citizens whose last entry to the U.S. was a legal one can do that.) Instead, they will need to go to a visa interview at a U.S. consulate.

The consular officer will then inquire as to whether each parent is "inadmissible" on various grounds; in particular, for having spent more than 180 days (six months) in the U.S. illegally while over the age of 18. If so, the person might be barred from the U.S. for either three or ten years. See How soon can the U.S.-born child of an undocumented immigrant petition for the parent? for additional discussion of this issue.

Some people can potentially apply for a waiver of the unlawful presence ground of inadmissibility, but only if they can prove that being denied the visa would cause extreme hardship to their own U.S. citizen or lawful permanent resident parents or spouse or U.S. citizen fiancé. Hardship to U.S. citizen children does NOT count in this context.

The U.S. Citizen Child Will Need to Qualify as a Financial Sponsor

After turning 21 and petitioning for the parents, the child will need to be living in the United States and earning enough money to serve as the parents' financial sponsor, in order to ensure that they will be supported at a level that takes them 125% or more (in most cases) above the U.S. Poverty Guidelines. That could be a tall order for a child of that age. But it could be overcome if the family has enough assets to make up the difference.

Avoiding Deportation Based on U.S. Citizen Children

Another relevant government policy you might have heard of is known as "prosecutorial discretion" (PD) or "deferred action." Because U.S. immigration enforcement authorities ("ICE") cannot deport everyone, they typically concentrate their efforts on high priority cases such as criminals, and drop the cases of people with many ties to the United States, including family.

By granting "prosecutorial discretion," the authorities wouldn't give the parents of a U.S. citizen a green card or anything like it, but they would promise not to deport them for the present.

Cancellation of Removal a Possible Remedy in Removal Proceedings

Even undocumented parents who are placed into removal proceedings might not be out of luck. If they have been living in the U.S. a long time, it might be possible to apply for what's called Cancellation of Removal (under I.N.A.) § 240A(b)(1)(D)), based on:

1. having lived (been "continuously physically present") in the U.S. for at least ten years
2. a showing that removal ("deportation") from the U.S. would cause "exceptional and extremely unusual hardship" to a qualifying relative or relatives who are U.S. citizens or lawful permanent residents (most likely the child)
3. a showing of "good moral character," and
4. proof of not having been convicted of certain crimes or violated certain laws.

Getting Legal Help

Living in the U.S. illegally in hopes of eventually immigrating is something that immigration law discourages, with numerous specific consequences. Your best best is to consult with an experienced immigration attorney.