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Will DACA affect my process of applying for permanent residency through my citizen spouse?

Los Angeles, CA |

I am a EWI who has been married to a US Citizen. I never applied for permanent residency but instead I applied and was approved under Obama's deferred action for childhood arrivals. I have since obtained my Social and Drivers License. To make my questions more specific, Will I still have to pay a fine and will I fill out the same paperwork I would have filled out if I did not have my social and work permit? Which spefic forms do I still need to fill out and which ones are no longer needed?

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Attorney answers 6

Best Answer

Even though you are DACA approved, you will still need to fill out the same paperwork, pay the same fees, and leave the country to interview for your green card. Depending on whether you accrued unlawful presence before you were approved for DACA, you may need to apply for a waiver. This can be very difficult. You should consult with an immigration attorney who can help you. - Disclaimer: This a general answer to your legal question. Unless you have a signed engagement letter with me, you should not consider this information to be legal advice.


Nothing in your question, would lead me to believe you even qualify for residence. Unless you receive a waiver or qualify under 245i entering the US legally is a requirement for adjustment. I would recommend you take your paperwork to an immigration attorney and they can guide you forward.

Legal disclaimer: The statement above is general in nature, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.


I agree with both of my colleagues. if you are married to a US citizen, you may be eligible for the provisional waiver. I strongly recommend scheduling an appointment with an experienced attorney to discuss.

This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.


Your spouse may still petition for you to get your residence, but as my colleague noted, because you entered without inspection, it's very possible you will have to return to your country to complete the process over there, rather than being able to adjust status in the United States. Having deferred action gives you the benefit of a work permit and it means you don't accumulate unlawful presence while you have deferred action. However, it doesn't erase any immigration issues that happened before you got deferred action. I suggest you consult with an immigration attorney who can ask you more specific details about your case, because there are a lot of factors here that could affect your options.

The information offered is general in nature and not meant to be relied upon as legal advice. No client-attorney relationship is created through this information. Please consult an attorney prior to making legal decisions.


Without knowing the details of your situation, such as whether you are 245i eligible, the short answer is DACA will not change anything in the process of yuor filing. Whatever you would have done before, you will still have to do.

Samuel Ouya Maina, Esq. 415.391.6612 Law Offices of S. Ouya Maina, PC 332 Pine Street, Suite 707 San Francisco, CA 94104


It sounds to me like you have some information about a provision of law that expired in April of 2001. Under the old law - 245(i) you could pay a penalty of $1,000 and adjust status in the U.S. If you had any type of petition filed before April 30 2001 that listed you - perhaps a sibling or parent, or employer you may be able to find it, dust it off and use it to qualify for adjustment of status based on some other eligibility such as marriage to a U.S. Citizen. Your question raises several unanswered but important questions - Are you sure you were EWI. If you were brought to the U.S. as an infant, even if not under your own identification it may be possible you were inspected and admitted and thereby could qualify under certain circumstances to adjust status in the U.S. based on marriage to a U.S. Citizen under INA 245(a). If this is the case you will have a heavy proof problem be it is possible. Please consult with an experienced immigration attorney - that attorney will help you to understand which specific forms should be filed.