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Can the 17-Year-Old Son of a NACARA Beneficiary Get a Green Card, Even If He Entered U.S. Illegally?

Posted May 28, 2010 by David Sperling, Esq.
Categories: Federal Immigration Policy

In “The Answer Man” series, David Sperling, Esq., fields reader questions about immigration law.

Question:
I am a naturalized U.S. citizen. In 2003, as soon as I got my green card through the Nicaraguan Adjustment and Central American Relief Act (NACARA), I did a petition for my son in El Salvador, but he came here illegally in 2005 when he was 17 years old. Is there any way he can get papers here?

Answer:
Yes. Assuming your son was not caught at the border, he can apply for a green card, or Legal Permanent Resident status, in 2012, as a NACARA “derivative.” A “derivative” is a spouse or child of the “principal,” which is you.

The Nicaraguan Adjustment and Central American Relief Act, signed into law in 1997, provided a means for hundreds of thousands of Salvadoran, Guatemalan, Nicaraguan, and Cuban refugees to obtain their green cards.

It also permitted derivatives to obtain legal status, no matter how or when they entered the United States—a good deal, all in all. This is one of the few exceptions to the rule that immigrants who entered the U.S. illegally cannot “adjust,” or obtain their green cards in this country.

To satisfy the legal requirements, an unmarried child (or stepchild under certain circumstances) who was under 21 at the time his or her parent was granted NACARA relief is eligible to apply for a green card as a derivative after living in the U.S. for seven continuous years. The same applies to spouses married prior to the grant.

Derivatives also have to demonstrate “good moral character,” but young kids typically don’t have problems with this.

Also, according to regulations, NACARA derivatives have to demonstrate that they would suffer extreme hardship if they were to be deported to their home country. However, I’ve never seen this section of the law applied. Here’s why:

To put it in confusing legal terminology (I just can’t help myself sometimes), extreme hardship is a “rebuttable presumption” for NACARA principals. That means that it is assumed that NACARA applicants would suffer if they were to be deported.

It is important to note that derivative children remain eligible for a green card through NACARA no matter how old they are now, as long as they are unmarried and were under 21 and single at time of their parent’s grant. So a 30-year-old can qualify if she was under 21 when her parent was granted NACARA relief.

If your son was apprehended at the border and then let go (“catch and release,” as it is called, doesn’t happen much anymore), he almost certainly has a deportation order. In that case, he would need a good immigration lawyer to try to reopen his case.

Immigration authorities are getting tougher all the time. It’s far better to immigrate to the U.S. the legal way, and have your family members obtain their permanent resident status through consular processing. Hopefully Congress will introduce and pass an immigration reform bill soon, and there will be more legal channels for migration.

More on that next week.

DISCLAIMER

In this column, Long Island Wins provides information about immigration law designed to help users understand and navigate the immigration system. The information contained on Long Island Wins is provided to you “as is,” and does not constitute legal advice. We are not acting as your attorney. Furthermore, statements in this column are not to be construed as legal advice creating an attorney-client relationship. Anyone with an immigration issue is strongly advised to consult with an experienced attorney or reputable non-profit legal-services organization.

Tags : answer man, green card, immigration law, immigration reform, nacara

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