There are standard classifications for persons who may apply for legal immigration status in the United States. The process typically starts with applying for and receiving a green card (also called a permanent resident card).
These classifications include a family based category whereby a U.S. citizen or legal resident may sponsor a foreign national family member or relative. U.S. immigration laws recognize that children are integral to the family unit and a petition may be submitted on their behalf to allow them to immigrate to the U.S. legally.
It is sometimes the case that undocumented (often referred to as illegal aliens or illegal immigrants) parents immigrate to the U.S. with their undocumented children or give birth to children in the U.S.
Failure to properly apply for permission to lawfully reside in the U.S. has legal consequences. For example, Illegal immigration by undocumented parents with their undocumented children can sometimes result in the separation of families through the process of deportation.
What If I am a Child of an Undocumented Person?
If your parents illegally immigrated here with you as children, you are subject to the same legal consequences as your parents. However, if you were born here to undocumented parents, you are automatically a U.S. citizen with all the constitutional rights of other U.S. born citizens. As a U.S. citizen, you are eligible to apply for a green card for your parents under the family preference immigrants classification.
During this time, your parents are still subject to deportation for their illegal presence in the U.S. An order of removal can be canceled if the removal judge finds some well-articulated evidence that removing your parents would create some “exceptional and extremely unusual hardship” to you as a U.S. citizenship (or lawful permanent resident).
Your parents must be able to demonstrate they have been continuously physically present in the U.S. for ten years, are of good moral character and that they have not been convicted of certain crimes or violated certain laws. If successful, the judge may award your parents legal permanent status.
If you were not born here, however, you are still considered undocumented and must have a family member or relative who is a U.S. citizen or lawful permanent resident apply for you. Until you have become a lawful permanent resident, you do not have the right to work or live in the U.S. and may be subject to deportation at any time.
Can I Remain in the U.S. Legally Even If I am Here Illegally?
You may be able to stay in the U.S. if you have been granted some form of asylum or refugee relief. You formally would have to be granted asylum status, which would then allow you to apply for a green card (adjustment of status). Note that being granted asylum does not automatically make you a permanent resident. You must still apply for an adjustment of your status to that of a permanent resident.
In June 2012, the Deferred Action for Childhood Arrivals (DACA) Act was enacted to allow young undocumented children to apply for a limited protection from deportation. It also allowed children of undocumented parents to achieve their dreams of attending college.
DACA did not provide amnesty and did not award a quicker route to a green card or U.S. citizenship. DACA also did not confer a limitation on deportation to their parents, only to the children.
You qualified for DACA if you were a child under the age of 16 when you arrived in the U.S., continuously lived in the U.S. and at the time you applied for deferred action, were either in school at the time you applied or had earned a qualifying degree, and had not been convicted of certain crimes.
Because the current Administration has indicated that this program is being phased out, it is being referred to in this article in the past tense. As the program stands now, the Department of Homeland Security will continue to adjudicate applications for renewals for those who previously were granted deferred action.
More specifically, due to two federal court orders, the Administration will review applications for renewal on a case-by-case basis for those who previously were granted deferred action and will not (with limited exceptions) accept new applications for deferred action.
Though DACA is not yet quite dead, the current Administration’s clear intent is to wind down this program. Therefore,It is imperative that you consult with a qualified immigration attorney sooner rather than later.
Should I Consult an Attorney If I Entered the U.S. as an Undocumented Immigrant?
If you are an undocumented child, you may be subject to deportation at any time. It is best that you consult with an attorney before you declare your status. A local immigration attorney will be helpful in explaining the best way to apply for lawful permanent status or to navigate the uncertainty of DACA given your specific circumstances.