DACA RECIPIENTS MAY BE GREEN-CARD ELIGIBLE

DACA Recipients Traveling Abroad With Permission May Become Eligible For a Green Card in the U.S.

DACA recipients may be eligible to travel outside the U.S. temporarily for humanitarian, educational, or employment purposes. Upon their return, they may become eligible for a green card if they are married to a US citizen.

This is because a person is often allowed to get a green card in the U.S. (instead of having to get it from the U.S consulate in his or her home country) when a person lawfully enters the U.S. This will immediately benefit persons with DACA who are spouses of U.S. citizens, and in the future those who are parents of U.S. citizens (though most DACA recipients will have to wait many years for their US citizen kids to turn 21).

Usually, a person who has been in the U.S. unlawfully cannot get a green card unless he or she is eligible for a waiver. This new method of applying for the green card would bypass the traditional waiver method that most applicants face. In short, this means traveling to Ciudad Juarez would not a requirement. Anyone who might be eligible for this program should consult with an attorney because there are some risks of traveling with advance parole, particularly for people who have prior criminal or immigration violations. An advantage of doing this soon is that the next president might end DACA.

Below are some examples to help you understand the differences between this program for DACA recipients and the traditional waiver program:

Examples: Carlos Casado, then 22 years old, and Maria Madre, then 30 years old, applied for and were granted DACA in 2013 and their DACA was renewed in 2015. Neither are able to adjust their status to become permanent residents in the U.S. because both entered the U.S. without permission as children with their parents and are not otherwise able to get their green cards here. They have been here ever since and never had contact with DHS until they applied for DACA.

CARLOS CASADO is a Mexican citizen and is married to a U.S. citizen, Cindy.

How Carlos would obtain his green card through Cindy’s petition AFTER he has returned with advance parole:

  • Carlos applies to DHS and is granted advance parole to travel to Mexico. He travels to Mexico and therefore is permitted to return by DHS. (DHS approves most DACA advance parole requests.)

  • Cindy, Carlos’ wife, is able to file an immediate relative adjustment of status application for him because his last return to the U.S. was with the permission of DHS even though his initial entry as a child was unlawful.

  • Carlos’ trip to Mexico did not result in the “ten year bar” because he traveled with advance parole. Therefore, he does not have to file a waiver with his green card application.

  • Carlos, accompanied by Cindy, has his adjustment interview in the San Francisco DHS office five months later.

  • DHS approves the adjustment application at the interview and Carlos is a permanent resident! (The actual “green card” will be mailed to him later.)

  • If DHS denies the application, Carlos remains lawfully in the U.S. with DACA status

The advantages of adjusting status in the U.S. after returning with advance parole are:

1) Carlos will not have to file a provisional waiver application because he is not subject to the ten year bar. DHS is currently denying a good number of these applications. Carlos will also save thousands of dollars in legal fees because it is much more work for an attorney to do a waiver application than to do an advance parole application.

2) If Carlos’ adjustment application is denied, he will be able to stay lawfully in the U.S. whereas if he were denied at the U.S. Consulate, he would be stuck in Mexico.

3) The adjustment process will take much less time than consular processing.

MARIA MADRE has a citizen son John, born in the U.S. who is 12 years old in 2015.

How Maria would obtain her green card through John’s petition AFTER she has returned with advance parole:

  • Once her son John turns 21, he is able to file an immediate relative adjustment of status application for her because her last return to the U.S. with advance parole was with the permission of DHS. Maria’s trip to Mexico did not result in the “ten year bar” because she traveled with advance parole.

  • DHS approves her permanent residency at the adjustmentinterview.

How Maria would obtain her green card through Maria’s petition if she did not travel with advance parole:

Maria would not be able to obtain her green card at the interview at the U.S. consulate in Mexico because of the ten year bar for unlawful presence. There is no waiver for the parent of a U.S. citizen. She would have to stay ten years in Mexico.

By Mark Silverman, and Alison Kamhi, Immigrant Legal Resource Center, August 1, 2015.


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