I was reading an interesting blog last night about immigration myths and facts and the topic of children being born in the United State to illegal immigrants came up. There is a common misconception that an illegal immigrant can just have a baby in the United States and be protected from deportation or that they can automatically obtain legal status.

The reality is quite different. It is true that immigration law does allow children born in the United States to sponsor their parents once they turn 21 years old but the process is anything but certain for many families. Under current immigration laws a person can only obtain legal status through an immediate relative if they 1) entered the country legally or 2) are protected under Section 245(i) of immigration law. Section 245(i) allows a person to adjust their status and obtain a green card in the U.S. by paying a fine of $1,000. They still have to qualify for the green card; they just do not have to leave the country to obtain it at a U.S. consulate.

Dangers of leaving the country to adjust status

You might wonder whether it's a big to leave the country to get the green card? Well, there are unlawful presence bars that exist and they bar illegal immigrants who accumulate time in the U.S. without legal permission to be here. Persons who stay 180 or more in the United States without legal permission and then leave the country will have a three-year bar from entering the U.S. in the future. Anyone who stays in the U.S. for a year or more will have a 10 year bar if they leave the country.

So leaving the country to get a green card could result in being barred from returning for 10 years. There are waivers that may be available to certain people who have triggered a bar. They must demonstrate that their U.S. citizen or legal permanent resident spouse or parent would suffer extreme hardship if they were not granted the waiver. Waivers are complicated and there is no guarantee that just because a person qualifies to apply for a waiver, they would get one.

How to qualify under Section 245(i)

Section 245(i) last came into effect over a decade ago and basically says that if a person has a labor certification or visa petition filed in their behalf on or before April 30, 2001 and they were physically present in the United States on December 21, 2000 then they would be grandfathered under this law and so long at they qualified for the green card, they could adjust their status here in the U.S.

Danger of deportation is real

If a parent of a U.S. citizen does not qualify under 245(i) and they never entered the country legally, they are at the same risk of being picked up by Immigration and Customs Enforcement (ICE) as any other illegal immigrant. Once a parent is detained by ICE they may qualify to fight a case of Cancellation of Removal but not just because they have a U.S. Citizen child, they must also have lived in the U.S. for 10 years or longer and prove a complicated 'extreme and unusual hardship' standard.

Therefore, if they do not have the required 10 years inside the country, despite having a child born here, they will be deported to their home country. They are free to take the child with them when they leave and the child, as a U.S. citizen, can return when he or she wishes.

If you or someone you know wants to learn more about their immigration options, contact an immigration attorney today