Can a citizen petition undocumented parents?

This week in my Consulta Migratoria® column, I answer a reader's question. Each case is different and the answers vary depending on the immigration history of each person. Here I provide a general answer to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

My wife and I entered the United States illegally. We have a 22-year-old American son who is studying medicine. Without our support, he would not be able to finish his degree.

Can we apply for permanent residency through our child? Are we eligible to apply for a pardon for having been in the country illegally? -Ramon C.

A U.S. citizen over the age of 21 may petition for his or her parents, spouse, children and siblings. When a citizen petitions for his or her parents, the person must meet several requirements, including proving parentage, legal status, and the ability to support the person petitioning.

Persons who entered the U.S. illegally generally cannot apply for permanent residence in the U.S. unless they are covered by 245(i). This law covers certain types of applications, including family-based and employment-based petitions.

To qualify under 245(i), you or your spouse must be the beneficiary of a petition that was properly filed with the immigration authorities before May 1, 2001. You must have entered the U.S. before December 22, 2000, if you filed your petition between January 15, 1998 and May 1, 2001. The 245(i) law allows you to acquire permanent residence within the country under certain conditions and by paying fines.

If they are unable to apply for permanent residency within the U.S., they will have to go outside the country to apply for residency. If they have lived in the U.S. illegally for more than 180 consecutive days, they may be subject to the penalty law that prohibits them from re-entering the U.S. for a period of 3 or 10 years, unless they are able to obtain an unlawful presence waiver.

To apply for a waiver of unlawful presence in the U.S., a person must meet several requirements, including demonstrating that his or her U.S. citizen spouse or parents would suffer extreme hardship if they were not granted permanent residence.

When applying for a waiver outside the United States, a person must meet several requirements, including demonstrating that his or her spouse or parents who are U.S. citizens or permanent residents would suffer extreme hardship if permanent residency is not granted.