Can I obtain residency if my child is in the Army?

In my Consulta Migratoria® column this week I answer a question from a reader who wants to obtain residency through a U.S. citizen son who is in the U.S. military.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

My 18-year-old citizen son enlisted in the Army 4 months ago. I have been told that my husband and I can fix our immigration status because my son is in the Army. Is this true? -Maria M.

Maria, the simple fact that your son is in the military does not automatically entitle you to permanent residency, because it depends on several factors. However, it could help them in the adjustment of status process within the United States.

Since your son is a citizen, he can file family petitions for you and your husband. But since he is only 18 years old, you will have to wait until he turns 21 before he can file.

In order for the U.S. Citizenship and Immigration Services (USCIS) to approve the family petition, they will have to prove your relationship and that your child is a U.S. citizen, among other requirements.

If you and your spouse entered the United States legally, you may be able to apply for permanent residence through an adjustment of status application based on your child's family petition. To be approved for adjustment of status, they will have to show that they entered the country legally, that your child can support them, and that they have not committed any wrongdoing in their past that would prevent them from obtaining permanent residence, among other requirements.

If you entered illegally, the situation becomes more complicated for you. Generally, people who entered the United States illegally cannot obtain permanent residence through a family-based petition unless they are covered by 245(i) or can obtain a parole-in-place.

What is an entry permit into the United States?

An entry permit into the United States, or parole-in-place, is a document issued by the federal government that serves as a legal admission to the country. If the government approves the application, it allows the immigrant to apply for adjustment of status within the country if he or she meets the proper requirements.

Currently, this leave is only granted to spouses, parents, and unmarried children under the age of 21 of U.S. citizens who are or have been on Active Duty or in the Selected Reserve of the Ready Reserve of the U.S. Army.

To apply for permission to enter the United States, you will need to file Form I-131, Application for Travel Document, along with evidence showing that your child is a U.S. citizen, that he is or was in the U.S. military, the relationship between you, and that you merit USCIS discretion to obtain permission, among other requirements.

This permit only excuses illegal entry into the United States. If you have other immigration or criminal problems, you should be carefully evaluated by an immigration attorney to determine if you can apply for this type of permit and to verify your immigration options before beginning any legal proceedings.

For more information and immigration tips, read my blog

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Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States) and presenter of immigration television segments of The Lawyer at Your Side in NY1 News. He is a past President of the Hispanic National Bar Association and current President of the Westlake South Los Angeles Neighborhood Council. For information on how to contact Dr. Castillo, please click here. click here.

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. This column may be considered an advertisement under the Rules of Professional Conduct for attorneys in several states, including California and New York. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.