How to adjust immigration status as a daca recipient

How to adjust immigration status as a daca recipient

Deferred Action for Childhood Arrivals (DACA) is a program that was introduced by the Obama Administration in June 2012 to provide work authorization and administrative relief from immigration enforcement action to certain unlawfully present aliens who entered the United States as children in two-year renewable grants. For more information about the original DACA initiative, please click here.

The Trump Administration announced in September 2017 a phase-out of the DACA initiative. For more information about the DACA program’s cancellation by the Trump Administration, please click here.

Congress has yet to provide a permanent legislative solution. In the meantime, federal courts have weighed in and have halted the program’s rescission. For now, the program is still operating according to the U.S. Citizenship and Immigration Services (USCIS) guidelines issued in January 2018 for those who are renewing a previously granted application. For more information about the current DACA policy, please click here.

Since the DACA program was introduced, about 800,000 young people – often called DREAMers – have participated in the program, which has allowed them to contribute to their communities and to the economy in meaningful ways. In the midst of the uncertainty currently surrounding the DACA program, many DREAMers are trying to gain some measure of security in the United States, including by looking into ways they may obtain valid immigration status in the United States.

Unfortunately, federal regulations do not offer a direct path from deferred action to lawful permanent residence. Furthermore, DACA does not provide nonimmigrant status that allows the individual to move into another nonimmigrant classification. That is, a person on DACA cannot change to an E-2, H-1B or F-1 visa for example. They are also not eligible for many green card categories.

Depending on certain factors, including the age of the DACA recipient when he was first granted DACA and the amount of unlawful presence he has accrued in the United States, he may be able to leave the country to obtain an employment-based nonimmigrant visa or green card to the United States. In addition, DACA recipients may in certain circumstances be able to obtain a green card through marriage. However, DACA recipients should seek the legal counsel of an experienced immigration attorney to determine the benefits and risk factors associated with pursuing valid immigration status in the United States.

Posted by Frank Gogol

DACA is the acronym used for Deferred Action for Childhood Arrivals. DACA holders are commonly referred to as Dreamers.

Dreamers are in the U.S. because their parents came to America illegally with the American Dream in mind and brought them along. Without DACA, Dreamers would be deported as they technically have no legal basis to be in the U.S. With DACA, they are allowed to stay in the U.S. and also allowed to work. But, can you go from DACA to Green Card? What are your options in the future to make your life in the U.S. more permanent? Let’s take a look!

Table of Contents

Can DACA Recipients Get Green Cards?

The answer is yes, in certain circumstances DACA recipients can get Green Cards. You just need to comply with the eligibility criteria we explain below.

Even though you can get a work permit, driver’s license, and a social security number with DACA, having DACA still has its challenges. For example, many Dreamers find it difficult to get DACA car loans.

Getting a Green Card has a lot of advantages. Unlike DACA, a Green Card does not, for example, have to be renewed every two years. It grants you the right to live and work in the U.S. on a more permanent basis. Even though there are DACA loans available out there, you will probably find it a lot easier to apply for financial services and loans if you have a Green Card.

So, let’s take a look at how you can transition from DACA to Green Card through marriage.

Two Ways to Transition from DACA to Green Card Through Marriage

Getting married to get a Green Card is not a good idea. But, if you are in the fortunate position of having a spouse who also happens to be a U.S. citizen, you can take advantage of the option to get a Green Card.

A U.S. spouse is viewed as an immediate relative which provides you with the eligibility to apply for immigration. There are two ways in which you can apply for a Green Card by being married to a U.S. citizen.

Consular Processing

Many DACA’s married to U.S. citizens don’t yet have a legal entry into the U.S. They also can’t get Advance Parole to regain immediate access (as instituted by the Trump administration).

So, for this type of status change, you need to apply for your immigration visa (Green Card) at a U.S. consulate or embassy in a foreign country. This is the best option for applicants who have not yet gotten a legal entry into the U.S.

  1. Establish eligibility – By being married to a U.S. citizen you are automatically eligible. You just need valid proof of your marriage.
  2. Get an I-130 petition approved – You need to complete and file an I-130 petition with the USCIS (U.S. Citizenship and Immigration Services). Your spouse is the petitioner and you are the beneficiary. You will receive an I-797 Notice of Action in the mail once it is approved.
  3. Get your visa number from the NVC – The National Visa Center (NVC) will notify you as soon as there is a visa number for your I-797. The good news is there are an unlimited amount of visas for petition based on immediate relatives (a U.S. citizen spouse).
  4. Apply for an immigrant visa – The NVC will notify you when you can submit your immigrant visa processing fees, visa application and supporting documentation. You will complete and submit a form DS-260. Your spouse may also be required to submit a form I-864 (Affidavit of Support) in which they promise to support you if you are not able to do so yourself.
  5. Attend consular processing – Once everything is submitted and received, the consular office will schedule a meeting with you (the beneficiary) to decide the outcome of your application. You will receive a Visa Packet once you have been approved.
  6. Enter the U.S. – You may cross the border with your Visa Packet. The border officer will allow you entry as a permanent resident once you’ve been cleared to enter. Your Green Card will be mailed to your registered U.S. address.

Be patient during this process. It can take up to 12 months to get a successful outcome.

Adjustment of Status

You can perform adjustment of status within the U.S. borders if you are already in the U.S. It’s important that you maintained your DACA status throughout your time here.

Follow these steps to go from DACA to Green Card through an adjustment of status:

  1. Establish eligibility – You need valid proof of your marriage to a U.S. citizen spouse.
  2. Fulfill eligibility for Adjustment of Status – You must be physically present in the U.S., you need to make a lawful entry into the U.S., and have an approved and current I-130 petition.
  3. File your application – File the I-130 application with the USCIS.
  4. Attend immigration appointments – The USCIS will inform you via mail about a biometric screening appointment. They take your photo, fingerprints, and signature at this appointment to perform a mandatory criminal background check. A few months later, you and your spouse need to attend an interview where the submitted information of the I-130 petition is verified. The USCIS will sometimes waive the necessity for the last appointment.
  5. Wait for your Green Card – Once all information has been approved the USCIS will mail your Green Card to your registered address.

This whole process can take up to 12 months.

INA 245(a)

As a Dreamer, you will probably have heard about INA 245(a) before. Put simply, this is the piece of legislation that enables you to go from DACA to Green Card.

Generally, a person who has lived in the U.S. unlawfully (such as Dreamers) must spend a prescribed period of time outside of the U.S. before they are allowed to re-enter lawfully and apply for immigrant visas. But, under the Immigration and Nationality Act (INA) 245(a), having a lawful entry into the U.S. as a Dreamer can waive the period you would originally be barred from entering.

Requirements for DACA to Green Card Applicants Married to U.S. Citizen

To make things a little simpler we’ll explain some of the requirements listed above. So, let’s take a look at the basic requirements for a Dreamer to get a Green Card.

Legal Entry

Your first entry into the U.S. when you came with your parents was unlawful. You need to make a lawful entry based on an exit for one of the three reasons:

  • Humanitarian reasons – a medical appointment (a dental appointment will suffice)
  • For educational purposes like studying
  • Employment reasons

Many DACA’s may even already have a legal entry due to previous overseas trips.

Eligible for Immigrant Visa

You are eligible for an immigrant visa based on a legal entry and a valid petition that is filed with the USCIS. You will, therefore, be eligible through the I-130 petition.

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DACA recipients have seen significant changes and threats to the program creating a lot of uncertainty about their future. It is important for DACA recipients to explore options for lawful permanent status. This webinar will focus on family-based immigration options for DACA recipients that would allow them to adjust status in the United States. As well as briefly review strategic considerations for DACA recipients pursuing other forms of relief

Presenters

Veronica Garcia

Veronica joined the ILRC in December 2017 as a San Joaquin Valley Law Fellow. Prior to joining ILRC, Veronica completed an Equal Justice Works Fellowship at Centro Legal de La Raza as an DACA/DAPA Emerson Fellow. Veronica is a graduate of Howard University School of Law. During Law school, Veronica interned at various immigrant right organizations, including Kids in Need of Defense and New York Legal Aid. Additionally, Veronica was recognized by the Hispanic Bar Association of Washington D.C. (HBA-DC) for her commitment to the advancement of the Hispanic community by being awarded the inaugural HBA-DC Foundation Scholarship.

As an immigrant who grew up in Oakland California, Veronica strives to use her legal education and experience working directly with immigrant communities.

Ariel Brown

Ariel Brown joined the ILRC in April 2017. After five years in private practice at a well-respected immigration firm in Sacramento, Schoenleber & Waltermire, PC, Ariel brings extensive practical experience to the ILRC. She has experience filing numerous immigration applications and regularly appearing before USCIS, ICE, and EOIR, with cases spanning the areas of removal defense, family-based adjustment of status and consular processing, DACA, naturalization, SIJS, U visas, and VAWA. She was also involved in establishing Sacramento’s rapid response network to respond to immigration enforcement action, and served as an American Immigration Lawyers Association (AILA)-USCIS liaison.

Ariel contributes to the ILRC’s Attorney of the Day legal technical assistance program, as well as writing and updating practice advisories and manuals and presenting on family-based topics for ILRC webinars.

Prior to joining the ILRC, Ariel also briefly volunteered with the International Institute of the Bay Area in Oakland, and Catholic Charities of the East Bay in Richmond. In law school, Ariel was a student advocate with the UC Davis Immigration Law Clinic, assisting with cancellation of removal cases for indigent noncitizens, and an editor for the Journal of International Law and Policy.

Ariel earned her law degree from the University of California at Davis, and her undergraduate degree from the University of California, Los Angeles, where she majored in anthropology. Ariel is admitted to the state bar in California.

Allison Davenport

Allison Davenport joined the ILRC in 2015 as a staff attorney based in California’s Central Valley, where she was born and raised. Prior to joining the ILRC, she was a clinical instructor with the International Human Rights Law Clinic at UC Berkeley School of Law. At the clinic she directed the establishment of the Legal Support Program for undocumented students, the documentation of human rights abuses against LGBTI individuals in El Salvador, and the promotion of equal access to clean water in California. Allison practiced immigration law, first in private practice and then as founder of the immigration legal services program at Centro Legal de la Raza. Allison also formerly worked as a staff attorney with the Center for Gender and Refugee Studies at UC Hastings. She graduated from UC Berkeley with a JD and an MA in Latin American Studies. Allison speaks Spanish.

How to adjust immigration status as a daca recipient

In the recent Department of Homeland Security v. Regents of the University of California (Jun. 18, 2020), the US Supreme Court partly rescinded the Trump Administration cancellation of Deferred Action for Childhood Arrivals (DACA). However, the common question, can DACA Holders use an Advanced Parole Entry (I-94) issued through the DACA in a subsequent Adjustment of Status based on Marriage to a US Citizen?

Basic Eligibility for Marriage-based Adjustment of Status

USCIS requires the following basic requirements:

  1. Marriage with love and not for the sole purpose to receive a Green Card
  2. A US Citizen or Lawful Permanent Resident Spouse
  3. A Legal Entry, Admission, or Parole

Consular Processing?

For many DACA, the “lawful entry” requirement is normally not met. Consular processing is generally the only possible immigration option where the Immigrant would have to attend a Green Card interview at the US Consulate or Embassy in there home country. For example, Mexican Citizens would have to attend a Consular Interview in Ciudad Juarez, Mexico.

The issue with Consular Processing and DACA, is that many individuals who have been without status in the US after the age of 18 for more than 180 or 360 days, would require an I-601A Waiver to remove the Inadmissibility Bar under INA 212(a)(9)(B)(I) or INA 212(a)(9)(B)(II).

Using Advanced Parole to provide a Lawful Entry Record (I-94)

For many years, U.S. Citizenship and Immigration Services (USCIS), have found that individuals who travel on advance parole satisfy the “inspected and … paroled” requirement of INA § 245(a) and are able to adjust their status to that of lawful permanent resident.

However, in 2019, USCIS cites INA §§ 304(c)(1)(A)(ii) and 304(c)(2)(b) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, 105 Stat 1733, 1749 (Dec. 12, 1991), as a way of denying Lawful Entries on Advanced Parole where the original “Immigrant Document” was received after an Illegal Entry. Put differently, USCIS can ignore the Advanced Parole I-94 and focus on the old Illegal Entry (EWI) in their Denial of Adjustment of Status. This USCIS Policy Change applied to TPS (Temporary Protected Status), however it is possible to apply to all Advanced Parole, including DACA Advanced Parole.

With the president’s recent announcement that DACA (Deferred Action for Childhood Arrivals) will soon end, beneficiaries of this program (“Dreamers”) are justifiably concerned. We certainly still hope that Congress will provide the long-overdue path to immigration status that these wonderful young people deserve. In the meantime, we would like to make a certain subset of Dreamers aware of another path they may be able to take.

H-1B status could be available to Dreamers who have at least a bachelor’s degree, and also have a job offer (or currently have a job) that requires their particular degree. The reason that most of the “older” Dreamers have not been eligible for this status is because, by operation of law, anyone who was older than 18-1/2 when they were granted DACA, had more than six months of unlawful presence in the United States.

The good news for younger Dreamers is that there is a difference between unlawful presence and unauthorized presence. Every single Dreamer had unauthorized presence. That is, individuals who were documented on June 15, 2012, were not eligible for DACA. But those who were under 18 did not have unlawful presence, because unlawful presence does not start to accrue until one’s 18 th birthday. Building on this, anyone who was granted DACA before they were 18-1/2, had less than 6 months of unlawful presence, unless they have had gaps in their DACA over the years, may be eligible for H-1B status.

You may be eligible for H-1B status if:

  • you have less than 6 months unlawful presence;
  • you have a bachelor’s degree; and
  • you have an appropriate job offer

However, there is an important caveat that all potential DACA H-1B applicants need to be aware of: they will not be able to “change status,” a term of art that means the individuals gets H-1B status without leaving the United States. That is because, in order to “change status,” you must have status. Instead, these individuals will have to leave the United States and get an H-1B visa at the US consulate in their country of birth, and then return using the visa.

An example would be Alicia, a Mexican citizen, whose history and potential for H-1B status is detailed below:

We hope that this post will help some Dreamers proceed further from their current status – it is important to note that once in H-1B status, there is often a path to lawful permanent residence and eventual US citizenship. If you believe that, like Alicia, you may be able to pursue H-1B status, we invite you to schedule a consultation with our firm, so that one of our attorneys can assess your eligibility for this benefit. We offer consultations via teleconference or Skype for prospective clients who are outside Chicago or Northern Virginia.

Please be aware that this post does not constitute legal advice. The unique circumstances of each case must be examined individually before proceeding with any immigration application.

A valid employment authorization document (EAD) issued under the Deferred Action for Childhood Arrivals (DACA) program is an acceptable List A document for Form I-9 employment verification purposes, USCIS has advised. If a current employee presents a new DACA EAD, the employer may need to amend the employee’s I-9 or complete a new one.

The DACA program offers relief from deportation to unauthorized foreign nationals age 30 or younger who arrived in the United States before the age of 16 and meet other eligibility criteria. DACA beneficiaries are eligible for a USCIS employment authorization document that is annotated “C-33” in the “Category” section of the document. The document also bears an alphanumeric card number.

New Hires Who Are DACA Beneficiaries

If a new hire presents a DACA EAD as an I-9 document, the employer should accept it as long as it appears to be genuine and to relate to the employee who presents it. The document title, number and expiration date should be entered on Form I-9 in Section 2 under List A.

Because the EAD is a List A document that establishes the presenter’s identity and employment authorization, the employer may not request additional documentation from the employee. Employers must remember that DACA beneficiaries – like all other legally authorized workers – are protected against I-9 document abuse. This means an employer may not subject a DACA beneficiary to higher scrutiny than any other employee, as doing so violates the anti-discrimination provisions of federal immigration law.

When the DACA EAD expires, the employer must reverify the employee’s work eligibility in Section 3 of Form I-9.

Current Employees Who Are DACA Beneficiaries

In some cases, a current employee may present a DACA EAD to the employer, either during a Form I-9 reverification or to notify the employer of a change in the worker’s personal information. Depending upon the circumstances, the employer may need to amend the employee’s existing I-9 or complete a new I-9. As noted above, the employer may not request any additional documentation from the employee for I-9 purposes.

New I-9 required. A new I-9 is required if there is a change in the employee’s name, date of birth, immigration status attestation or Social Security number (if the number was provided on the previous I-9). When completing the new I-9, the employer should enter the employee’s original hire date in Section 2 of the form, and attach the previously completed I-9 to the new form.

Section 3 only required. If there is no change to the employee’s name, date of birth, attestation or Social Security number, the employer must complete Section 3 of Form I-9 to reverify the employee’s work eligibility. The document title, number and expiration date of the DACA EAD must be entered, and the employer must sign and date the section.

If the employer previously completed Section 3 for employee or if the edition of the original Form I-9 is no longer valid, the employer must use a new I-9 form, completing only Section 3, and attach it to the previously completed I-9. (The current edition of Form I-9 is dated August 7, 2009; the February 2, 2009 edition is also acceptable).

When to Use E-Verify for DACA Beneficiaries

Employers who participate in E-Verify should use the system to check a DACA beneficiary’s work eligibility only if the individual is a new hire or a current employee for whom a new I-9 was completed because of a chance in the employee’s name, birth date, immigration status attestation or Social Security number. If the employer only completes Section 3 (whether on a previously completed I-9 or on a new I-9), E-Verify should not be used.

What the DACA I-9 Guidance Means for Employers

The new USCIS guidance answers some of the technical I-9 questions employers have raised since the DACA program was unveiled several months ago, and makes clear a DACA EAD is a valid I-9 document. But it does not provide guidance on two key issues for employers: What should the employer do if a current employee informs the employer that he or she is applying for DACA benefits – essentially admitting that he or she is not in the country legally and does not have work authorization? And what if an employee uses pay stubs or other employment records to demonstrate eligibility for DACA? In these circumstances, DACA poses some potential risks for employers.

USCIS has stated that it will not used information obtained in the DACA application process to pursue employers who have employed DACA applicants or refer those employers to Immigration and Customs Enforcement, the agency responsible for I-9 compliance. However, ICE has not made a similar statement, and it is unclear how it will handle information pertaining to DACA applicants and their employers.

An employer who completes Form I-9 correctly at the start of employment is shielded from liability if the employee later is discovered to be unauthorized or, relatedly, using a stolen or fraudulent identity. But if an employee advises an employer that he or she is seeking DACA benefits, the employer will acquire actual knowledge of the employee’s lack of work authorization. Under current law, permitting the employee to continue employment in this situation would make the employer liable for knowingly continuing to employ someone without authorization to work. If your organization learns of an employee’s plan to apply for DACA, consult your Fragomen professional as soon as possible.

If you have any questions about this alert, please contact your designated Fragomen professional. You may also direct your question [email protected] .

Currently, i’m receiving full-scope Medi-Cal.

I’m a DACA recipient who is over 26 and not pregnant. I am not a refugee or asylum seeker.

I already understand that the use of such a benefit does not disqualify me from renewing DACA. However, i’m getting mixed answers on whether or not it will negatively impact any attempt to adjust status (should such a path ever open up to me, Entered Without Inspection.)

I know that I qualify for Medi-Cal as a PRUCOL. But I can’t seem to get an answer as to whether or not that makes a difference. Some news outlets are reporting that it will not, but i’m not sure if they’re conflating renewing DACA with adjusting status in the future.

How to adjust immigration status as a daca recipient

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A: You can be disqualified from adjustment of status. A review of the rather complicated and intimidating form I-944 will likely mean that most applicants will need an immigration attorney to advocate on their behalf. The “likelihood” of being a public charge can result in a subjective and rather biased view.

You really need to seek private medical insurance before you are forced to answer yes with the threat of perjury and rescission should you misrepresent what can be considered a material fact in the evaluation of whether you may be inadmissible for adjustment purposes. If a catastrophic injury requires you to seek payment of medical bills due to inability to pay, then this can create a reason to deny your application.

The current Justices have ruled to allow USCIS to implement the new regulations while the matter is pending, even if the ruling may appear questionable based upon years of experience in this field of law.

The above is general information, not legal advice, and does not create an attorney client relationship.

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How to adjust immigration status as a daca recipient

How to adjust immigration status as a daca recipient

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How to adjust immigration status as a daca recipient

DACA (Deferred Action for Childhood Arrivals) status comes with several benefits. DREAMers who receive deferred action status get a two year reprieve from deportation. Along with that they can get renewable work permits. They can also get Social Security cards and driver’s licenses.

The other most important benefit that these DREAMers get is the ability to travel abroad. However, these DREAMers will get into trouble if they travel abroad without permission. To travel abroad legally, a deferred action recipient must get an advance parole document. To get advance parole, Form I-131, Application for Travel Document, must be filed.

This advance parole document issued by the USCIS grants the holder of this document permission to travel abroad and to return to America, even if the person does not hold a valid visa. To get this document, the deferred action recipient must file an application for a travel document with the USCIS and pay the required form filing fee.

Apart from that, the applicant must establish that he/she seeks to travel abroad for humanitarian, employment or educational purposes. In simple words, a person who has been granted deferred action status can travel abroad only for compelling reasons, he/she cannot travel abroad for vacation.

DREAMers who have filed applications for deferred action status cannot travel abroad while their petitions are pending and cannot file applications for travel documents. If they leave the country while their applications are pending, their request for DACA status will be denied.

However, it is unclear what qualifies as a humanitarian purpose. USCIS now has to clarify whether the deferred action recipients can get travel documents and travel abroad to visit their family members who were deported in the past.

There are many DACA recipients in the United States who have been separated from their family members. They are unable to meet their relatives and parents as they cannot travel abroad. DACA recipients who travel abroad with travel documents also face risks as advance parole does not guarantee readmission into the United States.

These DREAMers who travel abroad and return to the United States will be inspected by immigrants offices at the port of entry. Only after inspection, the DACA recipients who hold advance parole documents will be granted entry into the country.

Activists say that the USCIS must permit the DACA recipients to visit their families. They also want the immigration authorities to ensure that these DREAMers who hold advance parole documents are not denied entry into the country.