Can someone on DACA apply for a green card?
DACA is not a lawful status. But that doesn’t mean that someone with DACA cannot get a green card. DACA applicants’ pathway to a green card depends on their application basis.
There is a big difference between someone on DACA applying for a green card through marriage versus through employment. This article will look at the two different paths:
Obtaining a Marriage-Based Green Card
The method by which the Deferred Action for Childhood Arrivals recipient entered the US is relevant in determining whether someone can apply for a green card in the US (known as adjustment of status) or outside of the US (Consular processing).
DACA recipients who entered the country lawfully can apply for adjustment of status by filing Form I-485. They must have been inspected and admitted by a CBP officer and be married to a USC. Those married to an LPR cannot file for adjustment, irrespective of whether they have a lawful entry.
DACA recipients that entered the U.S. unlawfully are not allowed to adjust in the U.S. and must go for Consular processing. This is because a lawful entry is required to file for adjustment of status. This means leaving the U.S. after the I-130 is approved and going to the U.S. Consulate in their home country to obtain an Immigrant Visa. Once the Immigrant Visa is used to return to the U.S. the applicant will receive his/her green card.
However, this is where it gets more complicated. Applicants with over 180 days but less than one year of unlawful presence face a 3-year bar upon leaving the U.S. Those with a year or more of unlawful presence face a 10-year bar.
DACA recipients who received DACA prior to their 18th birthday do not accrue any lawful presence. People who get DACA after turning 18 will have an unlawful presence. Calculate days from the 18th birthday to receiving DACA as DACA prevents the accrual of unlawful presence.
Exploring the pathway to a green card is crucial for DACA recipients seeking to adjust their immigration status.
The Board of Immigration Appeals
A Board of Immigration Appeals (BIA) decision, Matter of Arabally and Yerrabelly states that someone who travels using advance parole (travel document) does not make a departure from the U.S. and therefore does not trigger the 3- or 10-year bar.
Someone on DACA with accrued unlawful presence can leave on advance parole. They can return to the US legally and file for adjustment of status if married to a USC.
If you entered unlawfully and stayed over 180 days without a way to get advance parole, leaving the US will activate the 3- or 10-year bar. However, you may be eligible for a waiver to overcome the bar if you can show extreme hardship to a USC/LPR spouse or parent.
Obtaining an Employment-Based Green Card
While DACA recipients can be sponsored by their employer for a green card they cannot apply to adjust their status in the US because DACA is not a lawful status. Employment-based adjustment needs lawful nonimmigrant status to file. An applicant with advance parole cannot adjust status for an employment-based green card upon legal re-entry to the US. because DACA is not a valid status.
DACA recipients who got DACA before 18 and have no unlawful presence can get a green card by attending a US Consulate appointment. The 3- or 10-year bar is not triggered.
If you obtained DACA after turning 18 and therefore you have an unlawful presence, then leaving the U.S. will trigger the bar. In Matter of Arabally and Yerrabelly, using advance parole does not trigger the 3- or 10-year bar. Someone traveling with advance parole does not leave the U.S. The problem here is that although USCIS recognizes this as a matter of law, DOS does not. This question has been raised with DOS, and they have failed to answer this. A DACA recipient with unlawful presence will still struggle to get an employment-based green card.
Exploring the pathway to a green card is essential for DACA recipients aiming for employment-based immigration opportunities.
Conclusion
To transition from DACA to a Green Card, consult an Immigration Attorney. If you have questions regarding any of the above, please contact PLG Partner cprescott@patellegal.com.