So, you have finally reached the end of the road and become a U.S. citizen and are wondering how to obtain a green card for your parents.
Fortunately, parents are immediate relatives, which means there is no wait time for a green card, except of course the time it takes for USCIS to process the actual application. To be eligible to sponsor your parents you need to be at least 21 years of age and a U.S. citizen. Lawful Permanent residents are not allowed to sponsor parents for a green card. This is one of the benefits only afforded to U.S. Citizens.
There are two ways for your parents to obtain a green card and that will depend on whether they are filing from within the U.S. or from their home country. Either way, it will be necessary for you to file an I-130 petition and if you are filing for both parents each parent will need a separate I-130.
Let’s look at how these two processes differ:
Filing for a green card when your parents are in the U.S.
If your parents are already in the U.S. in another status, it’s possible that they can obtain a green card without ever having to leave the U.S. by filing Form, I-485 to adjust their status. Quite often we consult with clients whose parents have come to the U.S. on a visitor visa and they want to know whether it’s possible to file for their green card.
For those considering this option, it is important that you are aware of the 90-day inconsistent conduct rule. This rule raises a presumption that a foreign national entering the U.S. has made a material misrepresentation at the time of admission if they engage in conduct that is inconsistent with the original purpose under which they entered as a visitor. This is because visitors entering on a B-2 are required to show that they intend to leave at the end of their authorized stay by demonstrating strong ties to their home country. This is called single intent. Entering the U.S. on a B-2 and then immediately filing an immigrant petition is inconsistent conduct and the individual would potentially have to overcome the presumption of willful misrepresentation. This means the burden is on you and not the government to show that you did not misrepresent yourself.
Although USCIS removed the 90-day inconsistent conduct rule from its policy manual in July 2021, most practitioners still advise waiting 90 days after admission before filing a petition as the safest option.
To file within the U.S. each parent would need to file the I-485 at the same time as the I-130 is filed and it is recommended to file for employment authorization and travel documents. The latter document is necessary in case your parents need to leave the U.S. before their I-485 is adjudicated. By having the travel document, they can leave the U.S. without abandoning the I-485.
USCIS typically adjudicates these cases without the need for an interview and processing time is usually 12-18 months. However, at the time of writing this article the processing time for the I-130 at the California Service Center, filed by a U.S. Citizen for a parent, is 29.5 to 38.5 months.
Filing for a green card outside of the U.S.
If your parents are not in the U.S., you can go ahead and file the I-130. Once approved this will be sent to the National Visa Center (NVC), who will in turn forward the case to the appropriate Consulate. Your parents will then attend a brief interview, to obtain an immigrant visa. Upon entering the U.S., your parents will be mailed their new green cards.
Obtaining a green card through this route is known as Consular processing and avoids having to deal with the 90- day consistent conduct rule, but it also means that they will not be able to travel to the U.S. on a Visitor visa, because the B1/B-2 is a single intent visa.
Financial support
To sponsor your parents for a green card you will also have to demonstrate that you can financially support them, by filing I-864, an affidavit of support. This form creates a contract between you and the government and by signing this you are required to demonstrate that you have sufficient income/assets to maintain your parents at 125 percent of the Federal Poverty Guidelines. The amount of income/assets which you will need to show depends on the size of your household. Further details of these can be found on the USCIS website:
For example, if you are married and have two children your current household size would be 4. If you intend to sponsor both parents your houseful size would become 6. You would be required to demonstrate an income of at least $44,475.00. If you do not have sufficient income, you can use your assets however, the total value of your assets must equal fives times the difference between your income and the poverty guidelines.
For example, if your income is $30,000 and your household size including both parents would be 6, the difference between your income and the poverty guidelines is $14,475.00. This means when using assets, the total assets would need to be five times $14,475.00, which equals $72,375.00.
In the absence of sufficient income or assets, you can use a joint sponsor.
If you have questions about sponsoring your parents for a green card, please contact PLG Partner and Attorney Chris Prescott at cprescott@patellegal.com.