Deferred Action for Childhood Arrivals, known as DACA, does not automatically lead to permanent residency at this time. However, that doesn’t mean that those with DACA don’t have any options to become permanent residents and get green cards. This article reviews some of those options. It’s always best to speak to an immigration lawyer before starting any green card process to make sure you’re on the right path.
Many people wonder if marrying a US Citizen or permanent resident will allow them to apply for green cards. Sometimes it does, but every case is different and some people have easier options than others. Two of the most important factors are whether the person with DACA was inspected and admitted, as well as the status of their spouse.
The easiest situation is for someone who has DACA but who previously entered on a visa or was given parole at some point. Many people who have DACA today entered the US as visitors on a B2 visa, border crossing card, or similar status. In doing so, they were “inspected and admitted” and can adjust status in the US if they marry a US Citizen.
Being paroled is different than being inspected and admitted on. Parole is usually granted to people at the border or after applying with USCIS using form I-131. It used to be easier for DACA holders to get parole. Today, in most cases it will be extremely challenging, but it is still possible to request parole before leaving the United States for serious humanitarian reasons. If someone was not inspected and admitted on a visa, but was paroled, they are still eligible to adjust status if they apply through marriage to a US Citizen.
If the DACA holder marries a resident rather than a citizen, they may still have options, but those options are usually more challenging. Most people who were not inspected and admitted or paroled must leave the US to consular process rather than adjust status. But there are some important exceptions. It’s important to check with a lawyer before starting a process.
Those DACA holders who are not eligible for adjustment of status can sometimes still consular process. Many people prefer to adjust status in the US for many reasons, but it is not always allowed. Consular processing means traveling back to one’s home country to attend a visa interview, after which the case is approved and the person becomes a resident when they reenter the United States.
As mentioned above, most people who were not inspected and admitted or paroled into the US must leave to become residents. In many cases, they will need a waiver due to having spent significant periods of time in the US without lawful status. The most common path is filing an I-130 family petition, followed by an I-601A provisional unlawful presence waiver, and then finally attending the interview abroad.
Waivers are not required for some DACA holders because the DACA status protected them from gaining “unlawful presence.” There are immigration punishments that affect people who overstayed or lived unlawfully in the US, and those are based on how many days of “unlawful presence” they have accumulated. Typically it becomes impossible to leave and reenter after 180 day. Having DACA will prevent those days from counting as unlawful presence for purposes of some immigration punishments. These cases must be reviewed with a lawyer to be safe.
For many other people, a waiver will be necessary because the immigration punishment triggers the moment they leave the US. Unfortunately, waivers can be challenging to obtain, especially for younger couples without children. Waivers involve a high standard of “extreme hardship” which is defined in a way to exlcude many kinds of hardships that couples face when separated. Because the process of obtaining proof for a waiver can be challenging, it’s highly recommended to schedule a consultation and work with an experienced lawyer on waiver cases.