Under U.S. law, any child born on American soil is automatically a U.S. citizen, regardless of their parents’ immigration status. This is known as birthright citizenship, protected by the 14th Amendment of the U.S. Constitution. While the child’s citizenship does not give the parent legal status, it does provide several important legal opportunities and protections for immigrant families.
At Flora Legal Group, we help families understand how the presence of a U.S.-born child can affect their immigration options – from key legal implications to pathways connected to having a U.S. citizen child.
1. U.S. Citizen Child Can File a Petition for Parents at Age 21
One of the most direct legal benefits is that a U.S. citizen child can file a Form I-130 (Petition for Alien Relative) on behalf of a parent once the child turns 21 years old. This petition is the first step in the process of obtaining lawful permanent resident status (a green card) for the parent.
However, there are limitations. To qualify for adjustment of status inside the U.S., the parent must generally have entered the country lawfully (with inspection and admission or parole). If the parent entered unlawfully, they may need to leave the country and apply for a waiver of inadmissibility—known as the I-601A provisional waiver—before completing consular processing abroad.
If a parent has accumulated unlawful presence in the U.S., they may face a 3-year or 10-year bar upon departure. A U.S. citizen child cannot waive this bar. In order to forgive the bar, a person must have a U.S. citizen or lawful permanent resident spouse or parent that will suffer extreme hardship if the foreign national is not able to be in the United States.
2. Cancellation of Removal for Non-Permanent Residents
If an immigrant without legal status is placed in removal proceedings, they may be eligible to apply for a form of relief known as Cancellation of Removal for Non-Permanent Residents under INA § 240A(b).
To qualify, the individual must show:
- They have been physically present in the U.S. for at least 10 years.
- They have demonstrated good moral character.
- They have not been convicted of certain disqualifying crimes.
- And their removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child.
A U.S.-born child can be the qualifying relative in this type of case. However, this is a discretionary benefit, and it is granted by an immigration judge. The standard of hardship is very high and must go beyond the normal hardship caused by deportation.
3. Prosecutorial Discretion and Deferred Action
Having a U.S. citizen child may also be considered by U.S. Immigration and Customs Enforcement (ICE) when determining whether to exercise prosecutorial discretion. This means ICE could choose not to prioritize removal or may agree to close or delay a case based on humanitarian factors.
In some cases, immigrant parents may also request deferred action, a temporary form of protection from deportation. Deferred action does not provide lawful status but can allow a person to remain in the U.S. and apply for employment authorization. Again, a U.S. citizen child can be a relevant factor in this request, especially if the child has special needs or medical conditions.
4. Consideration in Humanitarian Cases
U.S. citizen children may also strengthen applications for certain humanitarian forms of relief. For example:
- In asylum or withholding of removal cases, evidence that a child will face serious harm or persecution if the family is returned to the home country can be relevant.
- In rare circumstances, a U.S. citizen child may even be the principal victim of a qualifying crime for a U visa, with the parent applying as a derivative if the child is under 21 and unable to represent themselves.
- U.S. Citizen children who join the military can also provide their parents an immigration benefit that can lead to a work permit and/or residency.
Important Reminders for Immigrant Parents
- A U.S.-born child cannot “sponsor” or “fix” their parents’ status automatically. Immigration benefits must be applied for through legal processes and often depend on the parent’s immigration history.
- There are strict eligibility requirements for all forms of relief mentioned here. Each case is different.
- Legal advice is essential. Immigration law is complex, and the presence of a U.S. citizen child does not guarantee success in any application.
Having a U.S. citizen child is not a pathway to automatic status, but it can help open legal doors that would otherwise be closed. It is also an important factor in many immigration decisions, from deportation defense to future green card petitions.
At Flora Legal Group, we understand the hope and uncertainty immigrant families face. We are here to help you explore your legal options, protect your family, and plan for the future. If you have a U.S. citizen child and questions about your immigration status, contact our office today for a consultation.
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