Legal Options for Children of Illegal Immigrant Parents

Confused? Ask an Immigration Attorney for Legal Advice

The legal options children of illegal immigrant parents have in terms of maintaining citizenship depend on how and why they entered the United States.

When determining citizenship, it depends on where the child was born. Children born outside of the U.S. have more limitations on their path to citizenship than do children born in the United States or in one of its territories.

The 14th Amendment and Children of Illegal Immigrants

If a child was born in the U.S. to parents who are here illegally, the child is considered a full citizen. Under the 14th Amendment to the United States Constitution, a child born on U.S. soil is eligible to obtain what is known as “birthright citizenship.” Birthright citizenship, also known as jus soli, literally means, “right of the soil.” Regardless of the immigration status of the parents, a child born on United States soil automatically receives full citizenship and is entitled to all the rights and protections available to any citizen. However, it is important to remember that this does not apply to the parents.

For children born outside the U.S. and brought into the country illegally, the options are limited under United States immigration law. However, there are programs that can help.

Deferred Action for Childhood Arrivals (DACA)

Deferred Action for Childhood Arrivals, known as DACA, is a way for children who were not born in the United States and were brought into the country by illegal immigrant parents to avoid deportation. In other words, to defer or postpone any action regarding deportation. Although DACA recipients may live and work in the United States legally, it is also important to remember that DACA status is not equivalent to citizenship.

In order to apply for a grant of deferred action with USCIS (U.S. Citizenship and Immigration Services), applicants must be at least 15 years old, unless they are in the process of removal proceedings. Applicants may not apply from an immigration detention center.

At this time, according to the USCIS website, as of February 14, 2018, the USCIS will not be accepting any new DACA requests. However, they are accepting requests for renewals of applicants who have previously been granted a deferment.
With DACA status, deportation is deferred for a period of two years after which time the request for deferred action must be renewed. If a DACA deferment has already been granted, an application for renewal of DACA status can be filed provided the current USCIS guidelines are met and the applicant:

  • Was less than 31 years old as of June 15, 2012
  • Lived in the U.S. before his or her 16th birthday
  • Lived in the U.S. since June 15, 2007
  • Was present and living in the U.S. on June 15, 2012, and at the time of filing the original DACA request
  • Had no lawful resident status on June 15, 2012
  • Is currently a student in school, a high school graduate who received a diploma, a GED certificate, or a veteran who received an honorable discharge from the U.S. Armed Forces or the Coast Guard
  • Has not been convicted of a felony, major misdemeanor, three or more misdemeanors, or pose a safety problem to the U.S. or the public

DACA renewals may be requested if the conditions above are met and the applicant:

  • Did not leave the U.S. on or after August 15, 2012, without having an advanced parole document, Form I-131 (Application for Travel Document)
  • Continued to live in the U.S. since the most recent DACA approval
  • Has not been convicted of a felony, major misdemeanor, three or more misdemeanors, or pose a safety problem to the U.S. or the public

If deferred action has previously been granted under DACA, the following forms must be filed again to apply for renewal:

  • USCIS Form I-821D (Consideration of Deferred Action for Childhood Arrivals)
  • USCIS Form I-765 (Application for Employment Authorization)
  • USCIS Form I-765WS (Form I-765 Worksheet)

There is a $495 application fee for DACA. This fee is standard regardless of age or country of origin of the applicant. Waivers are not allowed. However, it is possible to apply for a fee exemption for form USCIS Form I-765 (Application for Employment Authorization) which currently has a filing fee of $410. Visit https://www.uscis.gov for more information about applying for an exemption.

Because DACA has several qualification guidelines, it may be beneficial to contact USCIS to find out if you qualify.

Special Immigrant Juvenile Status (SIJ)

Children who have been abused, abandoned, or neglected by a parent may be able to apply for Special Immigrant Juvenile status. SIJ status allows undocumented youth to instantly apply for lawful permanent residency status (LPR) and a Green Card in the United States.

The rules for applying for Special Immigrant Juvenile status are:

  • The child is unmarried and under age 21
  • The child is dependent on the court, in the care of a state agency, or in the custody of an individual or entity appointed by the court
  • Being reunited with one or both parents is not advisable due to the abuse, abandonment, or neglect
  • It is in the best interest of the child to avoid returning to his or her home country

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant and Form I-485, Application to Register Permanent Residence or Adjust Status need to be filed along with supporting documentation to request SIJ and Permanent Resident status. Due to this humanitarian situation, fee waivers are available for these forms.

Asylum for Children of Illegal Immigrant Parents

Children are often brought into the United States when their parents entered illegally to seek asylum from persecution. Some forms of persecution are experienced because of a person’s:

  • Race
  • Religion
  • Nationality or ethnicity
  • Political views
  • Association with certain social groups

Parents and children may be permitted to stay in the U.S. by applying for asylum within one year of arrival. Form I-589, Application for Asylum and for Withholding of Removal must be filed. There is no fee to apply.

An Immigration Attorney Can Answer All Your Questions

The United States immigration laws are constantly changing. It can be difficult to find the right information you need on your own. With possible changes to current U.S. immigration policies approaching, it is best to seek legal advice from an experienced immigration attorney to make sure you’re exploring every available avenue.

Related: Family Law Based Petitions