If filing for an adjustment of status, the parents can apply for an employment authorization card and under certain circumstances, a permit to travel out of the US while awaiting the adjustment interview. Consult with an immigration attorney before filing for the travel permit, commonly known as “Advanced Parole”.
If the parents are not present in the US, they will have their interview in the US consulate or embassy in their country.
How long does it take if the parents are outside the US?
This process takes about one year in most consulates.
Because of the rule that says than an immediate relative cannot be accompanied by anyone else on their petition, in this type of case the under 21 year old unmarried children of the parent cannot get residence along with the parent. The US Citizen child will have to file for his/her siblings separately of the parent can file for their other unmarried children when they receive their own permanent residence.
If the father was not married to the mother of the child on the date the child (now a US citizen) was born, extra documentation in addition to the child’s birth certificate needs to be submitted even if the gift certificate shows him as the father of the child. If the child’s birth certificate does not show the last name of the mother, as happens in certain Islamic countries such as Iran and Pakistan, we need to show that on the date the child was born, the mother was married to the father was has given his last name to the child. Speaking of Islamic countries, USCIS does not recognize any marriage entered into while the spouse was still married to someone else.
In other words, the US does not recognize second or third wives, although they may be legally married to the same man at the same time in certain Islamic countries.
The US citizen petitioner needs to do an affidavit of support to show that the beneficiary will not become a public charge. One thing to note is that anyone doing an affidavit of support for a permanent resident case must be actually residing in the US at the time the affidavit of support is submitted and theoretically when the consular case is approved. Therefore, children born in the US but residing in another country will need to move back earlier to the US and live in the US in order to apply for their parents. This is a requirement for all petitions of relative petitioners.
Section 245i and the 3 year / 10 year ban rule
If the alien parents entered the US without inspection (illegally, without passport and/or visa) as a general rule (except for Section 245i) they will have to return to the native country and have the interview at the US Embassy or Consulate there.
Now, the problem with having a consular case for persons who have remained in the US in unlawful status for more than 180 days after the age of 18 and after April 1st 1997 and they leave before the US permanent residence case is approved, then they will be banned to return to the US for 3 years. If the person remained unlawfully in the US for a whole year or more, then he/she will be banned of returning to the US for 10 years.
Under certain circumstances, a person can have the final interview in the US without leaving and thus, will not be banned for 3 or 10 years. This law is called Section 245i, which says that a person had an approvable immigrant petition or a Labor Certification (PERM) filed on his/her behalf before May 1st, 2001, he/she can pay a penalty of $1,000 in addition to the normal USCIS filing fees and have their interview here in the US without returning to their native country.
If you can avoid leaving the US in the first place, you cannot be banned from returning.
The Law says if you are the spouse or single under 21 years old child of a person who qualifies for Section 245i and as such could theoretically accompanied the principal beneficiary on that case that was filed before May 1st, 2001, you can use Section 245i too, If the case in question was filed after January 14, 1998, you have to show that you were physically present on or about December 22, 2000 when the last extension to the Section 245i law was passed. If your case was filed on January 14, 1998, or earlier, you don’t have to show physical presence. There are a lot of technical details about this law, so you need to have a consultation with an immigration lawyer to see if you qualify for Section 245i.