Q. Can a child who came in with a humanitarian visa and is being petitioned by his/her resident mother apply for adjustment of status, or will this child have to go back to his/her country to get a green card? -Name withheld

March 16, 2012 | Adjustment of Status, Family Petition, Immigrant Visas, Legal Permanent Residents (LPR)

A. Adjustment of status is a process that allows an individual who is already present in the United States to apply for permanent residence and receive it without leaving the country. Though there are many exceptions, in order to qualify for adjustment of status, an individual generally must meet three criteria:

  • He/she must have a basis for applying for permanent residence;
  • He/she must have entered the United States lawfully, and continuously maintained lawful status; and
  • He/she must have not engaged in any “bad acts” that would make him/her ineligible for permanent residence.

Basis for applying for permanent residence: Family sponsorship is the most common vehicle for obtaining permanent residence. Depending on whether the sponsor is a U.S. citizen or permanent resident, the family relationship involved and other factors, family sponsorship can be a short path or a very long trail to permanent residency. Certain family members of U.S. citizens can apply for permanent residence at the same time that they are petitioned for by the sponsoring family member. All others have to be petitioned for, await approval of the petition, and then line up in their respective queues ordered by date of application, before their approved petitions can be a basis for applying for permanent residence.

Lawful entry and lawful presence: Usually, an applicant for adjustment of status must have lawfully entered the United States and maintained lawful status since that entry. There are significant exceptions to this requirement, for certain family members of U.S. citizens, for certain individuals who had applications pending before April 30, 2001, and for various other groups.

Bad acts: Committing criminal acts, having previously filed fraudulent immigration applications, and other conduct can make an individual ineligible for adjustment of status and permanent residence.

From what you write, it seems that the child entered the United States lawfully. If that is the case, and the child is still here and maintains lawful status, he/she can adjust status once he/she gets to the front of the line under the quota system. If the child falls out of status, but the mother naturalizes while the child is under 21 and unmarried, again, the child can adjust status. Note that the law allows an unmarried child of a U.S. citizen under 21 to adjust status even if the child has fallen out of status after a lawful entry.

As noted above, family members of U.S. citizens receive relatively favored treatment by immigration laws. If the mother is interested in acquiring U.S. citizenship, I advise her to contact one of our centers to receive a consultation about her eligibility for naturalization.