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Can I apply for Deferred Action for Childhood Arrivals even if I already have "An Adjustment of Status Pending"?

Los Angeles, CA |

My father who is a permanent resident, filed me an application to adjust my status back in 2005 , the petition was approved by USCIS but then it was sent to the Visa Center, I was notified that they were no visas available and they will notify me if one becomes available soon. I have been waiting for over 4 years for an answer and I still have no gotten anything. I wanted to know if I still can apply for DACA?

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Attorney answers 7


A visa is not immediately available to you because your father is an LPR. I suggest he apply for his NATZ if he qualifies. His NATZ will result in you obtaining an immigrant visa more quickly.
DA is not a permanent status. Your adjustment through your father will be permanent.
You are in the fortunate situation in that you have choices. I strongly suggest you consult with an experienced immigration attorney to determine your best strategy for moving forward.


Yes, you may apply for DACA, but remember that it will not lead to a green card, just deferred action status for two years and a work authorization. Please also note that if your father is still an LPR, you may not marry, because if you do, your visa will be cancelled since there is no category for married children of LPR parents. Depending on your country of origin, your visa may be available soon, so I suggest you check visa bulletin periodically. Please see the link below.

Contact immigration attorney Gintare Grigaite, Esq. at 646-407-2331, located in New York and New Jersey. Answers on AVVO do not constitute legal advice and do not form attorney-client relationship. Always consult an attorney for a legal advice.


You are not precluded from applying for DACA. However, remember that your father's sponsorship will lead to a green card for you while DACA will not.

Please click the link below for additional information.

Carl Shusterman, Esq.
Former INS Trial Attorney (1976-82)
Board Certified Immigration Attorney (1986 - Present)
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600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
(213) 394-4554 x0
Web: (English) (Spanish)

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


There are a couple of issues here. First, you may qualify for Deferred Action for Childhood Arrivals (DACA), and if you do qualify, it might not be a bad idea to get it. This would provide you with an Employment Authorization Document (EAD) for a few years. Although it is not clear exactly WHEN you would qualify for the green card through your father's petition, you would at least have the EAD so that you can work while you wait.

However, the other difficulty looming is: when your priority date arrives, you may or may not be able to have your green card interview in the USA. If you do NOT qualify to have the interview in the USA, you will have to deal with the issue of going back to your home country for the interview. If you have been in the USA in an undocumented status for over a year, then you would be faced with a 10-year bar before you would be allowed back to the USA after the interview.

You should contact a lawyer to discuss all of these wrinkles in the case. Best regards,

--J Craig Fong

I must remind you that although I am an attorney, I am not YOUR attorney. The information I am providing you is general information about the law. If you would like specific information or advice, I am going to suggest that you make an appointment to come in, or call, to chat with us.


As to your question regarding DACA, you can apply as long as you meet all the requirements, including the requirement that you are out of status at least as of 6/15/2012. DACA's advantage is that you'd be able to obtain employment authorization while you're waiting for your immigrant visa.

Regarding your pending application, if your father became a citizen, your wait time for your visa may be reduced - this depends on your country of birth and priority dates. If you're illegally in the U.S., you will not be able to adjust your status in the U.S. unless you're 245i eligible.


If your case was sent to the National Visa Center, you are likely not eligible for adjustment of status. However, having an immigration case pending does not disqualify you from DACA, a benefit that may be for only two years. You may or may not be eligible for employment authorization, depending on whether you can prove "economic necessity." It is also important you understand that it is a must for a lawyer to review all the paperwork of your pending case to assure that there are no obstacles to pursuing the pending action or filing a new one. To protect your eligibility and interests, you should consult an experienced immigration attorney. .

The herein content is for general informational purposes only, and may be predicated on incomplete facts. It should not be relied upon in making legal decisions or assessing your legal rights or risks. Neither does the herein reply create an attorney-client relationship.


You should apply for DACA. It won't hurt your pending application and offers immediate benefits.

Best of luck,

Sanjay A. Paul, Esq.
(888) 373-2602

This is not legal advice. No attorney client relationship exists between us.