The DACA program does not offer a direct path to lawful permanent residence. However, if a DACA recipient marries a U.S. citizen or permanent resident, they may be eligible for a marriage-based green card.
This status provides protection from deportation, long-term work authorization, and serves as the initial step toward U.S. citizenship. Transitioning from a DACA recipient to a green card holder requires meeting specific eligibility criteria.
However, the application process varies based on the spouse’s immigration status and the recipient’s lawful or unlawful entry into the United States.
Acquiring a Green Card for DACA Recipients Married to U.S. Citizens
For DACA recipients married to U.S. citizens, the method of obtaining a green card is contingent upon their lawful entry into the U.S. If the entry was legal, they can seek a green card from within the United States.
Conversely, if their entry was unlawful, the application process necessitates applying from their country of origin. This section elaborates on both procedural pathways.
Entry into the U.S. Lawfully
Admittance into the United States lawfully is typically a prerequisite for obtaining permanent resident status. There are two lawful methods of entry: one involves entering with inspection, where individuals enter using a valid visa and undergo inspection by a U.S. Customs and Border Protection (CBP) officer. The other method is via the Visa Waiver Program.
Some DACA recipients initially entered the U.S. lawfully but subsequently became undocumented after overstaying their visa validity.
If a DACA recipient became undocumented due to visa overstay, they may still fulfill the lawful entry criterion provided they haven’t departed the U.S. subsequent to their initial lawful entry. If such individuals are married to U.S. citizens, they follow the same adjustment of status application process as other marriage-based green card applicants.
Unlawful Entry into the U.S.
However, for those who entered the United States unlawfully, without a valid visa, approved visa waiver, or inspection by U.S. Customs and Border Patrol, applying for a marriage-based green card is more intricate.
Such applicants must initiate the application from outside the U.S. and fulfill the lawful entry requirement before applying.
Methods to Meet Legal Entry Criteria
Obtaining Advance Parole
DACA recipients can meet the legal entry requirement by applying for Advance Parole. This allows them to return to the U.S. after traveling abroad for humanitarian, educational, or employment purposes, demonstrating lawful entry upon successful re-entry using an approved Advance Parole document.
Consular Processing for DACA Applicants Under 18
Those who applied for DACA before turning 18 or within 180 days of their 18th birthday can meet the lawful entry requirement by applying through consular processing at a U.S. embassy or consulate in their home country if their marriage green card application is approved.
Complexities for DACA Applicants Over 18 Without Advance Parole
For DACA applicants who applied more than 180 days after turning 18 and haven’t utilized Advance Parole, facing re-entry bars is possible due to residing in the U.S. as undocumented for a certain duration.
A waiver, specifically the I-601A Provisional Waiver, can mitigate the three-year or 10-year re-entry bars by demonstrating extreme hardship if unable to return to the U.S. and the reasons preventing cohabitation with their spouse in their home country.
Permanent Bar for Repeated Unlawful Entries
Those who entered unlawfully multiple times face permanent barring under U.S. immigration law and are ineligible to apply for a waiver to revoke this permanent bar.
Acquiring a Green Card for DACA Recipients Married to Green Card Holders
DACA recipients married to green card holders are also eligible to pursue a marriage-based green card. However, spouses of U.S. permanent residents can only apply through consular processing from outside the United States, irrespective of their initial entry into the country (lawfully or unlawfully).
The duration and complexity of the application process may be influenced by factors such as the timing of DACA application and potential re-entry bars imposed by the U.S. government.
DACA Application Timing and Process for Marriage Green Card
DACA Application Before Turning 18
Those who applied for DACA before or within 180 days of turning 18 can seek a marriage green card from their home country, specifically at a U.S. embassy or consulate. This process requires applying outside the U.S. and may involve a longer wait for visa availability based on the visa bulletin.
DACA Application More Than 180 Days After Turning 18
DACA applicants who applied over 180 days after turning 18 might face implications due to residing in the U.S. without legal status.
Under the Immigration and Nationality Act (INA), individuals living in the U.S. without legal status could encounter re-entry bars. A Provisional Unlawful Presence Waiver (Form I-601A) filed with assistance from an immigration attorney can assist in overcoming this barrier, enabling return to the U.S. without waiting for the bar to conclude.
Repeated Unlawful Entries
DACA recipients with multiple unlawful entries into the U.S. could face a permanent bar from re-entry, even if they are immediate relatives of U.S. permanent residents.
Unfortunately, immigrants facing this permanent bar are not eligible to apply for the Form I-601 inadmissibility waiver to alleviate this restriction.
Timeline for DACA Recipients Obtaining a Green Card
The duration for DACA recipients to secure a green card varies based on the selected green card application process. The initial step involves the U.S. citizen or permanent resident spouse submitting Form I-130 to the U.S. Citizenship and Immigration Services (USCIS), seeking permission for the DACA recipient to apply for a marriage-based green card. Supplementary forms include Form I-485 for applicants within the United States or Form DS-260 for those applying from their home country.
Adjustment of Status within the U.S. (Spouse: U.S. Citizen)
If pursuing adjustment of status within the U.S. with a U.S. citizen spouse, both Form I-130 and Form I-485 can be filed concurrently. This entire process typically spans 8-14 months.
However, if the spouse is a permanent resident, the DACA recipient must wait for USCIS approval of Form I-130 before filing Form I-485. USCIS processing times usually range from 8-12 months for I-130 and 11-26 months for I-485 filings in such cases.
Application from Abroad
For applicants filing from abroad, approval of Form I-130 precedes the submission of Form DS-260 with the State Department’s National Visa Center (NVC). This process generally extends an additional 4-8 months for DS-260 approval.
Furthermore, if a Form I-601A waiver application is necessary due to an unlawful entry, the typical processing duration is 4-6 months to address this aspect of the application.
Marriage to a U.S. citizen or permanent resident offers DACA recipients a pathway to a green card, albeit with complex eligibility criteria and varied application processes. Entry status, spouse’s citizenship, and waiver needs impact timelines.
Adjustment within the U.S. takes 8-14 months for citizens, while filing from abroad extends the process. Understanding these nuances is crucial for DACA recipients aiming to navigate the intricate journey toward lawful permanent residency.