from DACA to Green Card
This legal guide is a walkthrough for how an undocumented person could, under certain circumstances, go from no legal status in the US to a lawful permanent resident.
Disclaimer: This is not to be construed as legal advice and does not constitute the formation of an attorney client relationship.
Step 1: Obtain DACA StatusDACA, or Consideration of Deferred Action for Childhood Arrivals, is a discretionary form of immigration relief created by President Obama through Executive Order that offers certain undocumented persons temporary relief from removal from the United States, or Deferred Action, and the ability to apply for Work Authorization, also known as an Employment Authorization Document, and in some cases a State Drivers License/ID, and a Social Security Card.
The requirements for Consideration of Deferred Action for Childhood Arrivals are set forth by USCIS as follows:
-under the age of 31 as of June 15, 2012;
-Came to the United States before reaching your 16th birthday;
-Have continuously resided in the United States since June 15, 2007, up to the present time;
-Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
-Had no lawful status on June 15, 2012;
-Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
-Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
A person who meets these requirements may submit an I-821D application with supporting documentation to USCIS, and pay the required filing fee and biometrics fee (380+85 for 465 total -at the time this post was created). If the application is approved, that person is granted DACA status for a period of two years. DACA must be renewed 3-4 months before the expiration date on the USCIS issued approval notice.
Once granted, DACA gives a person the opportunity to obtain work authorization, a social security card, and state ID/drivers license in some instances. While this is a great tool, DACA does not confer legal status, lawful permanent residency, nor US citizenship, and can be revoked for a variety of reasons, including leaving the US without permission or committing certain criminal offenses.
Step 2: Apply for Advance ParoleAdvance Parole is a technical way of saying "permission to leave the United States and come back." Advance Parole is decided by USCIS upon the filing of an I-131, Application for Travel Document, and upon payment of a 360 processing fee plus an 85 dollar biometrics fee, in most cases.
A person with DACA status is allowed to request Advance Parole from USCIS upon the filing of an I-131, but must demonstrate humanitarian reasons, education reasons, or employment reasons, for the request to be granted, Vacation or leisure as the purpose stated for the Advance Parole request will typically result in a denial.
Along with the I-131 Application for Travel Document and the filing fees, an applicant for Advance Parole must demonstrate the reason for their request through supporting evidence, such as medical records, school records, legal documents, and letters or sworn affidavits from school, friends, or family.
The applicant must also state the intended time frame and destination for traveling outside the United States. When the application is approved, the person must bring the approved I-131/Advance Parole document with them and present it at the US Customs/Border Checkpoint or Port of Entry upon return.
If paroled or accepted back into the United States upon return from the travel, the person is considered to have been "inspected and admitted" back into the United States.
It is highly recommended that a person consult with an attorney before deciding to apply, or depart the country, under advance parole.
Step 3: Apply for Adjustment of Status (if eligible) in the United StatesAssuming the DACA recipient/Advance Parolee is permitted to return to the United States upon a showing of their Travel Document at the Border or Customs location, they will be considered to have been "inspected and admitted" into the United States. This is a crucial determination for the next step, the adjustment of status, or the Green Card process.
Assume again that the person is married to a United States citizen or Lawful Permanent Resident, or has a United States citizen or lawful permanent resident parent or sibling that is eligible to file a Form I-130 Petition for Alien Relative and a Form I-485, Application to Register Permanent Residence or Adjust Status, on their behalf.
Because that person has been inspected and admitted to the United States following their return from their trip abroad which was permitted by the Advance Parole, they are now eligible to Adjust Status to Lawful Permanent Resident inside the United States instead of from abroad, assuming they meet all the other statutory requirements.
Typically, an undocumented person who initially entered the US without authorization would not be eligible for adjustment of status from within the US, and would have to consular process at the embassy or consular post in their home country before they could receive a Green Card, or Lawful Permanent Residency. The reason they might be eligible for adjustment of status following their advance parole is that they would now be considered to have entered legally, having been inspected and admitted. The Immigration and Nationality Act, INA 245(a) says that a person who is applying for adjustment of status in the US must have been admitted or paroled into the US. Therefore, a person who initially came to the US undocumented would not have been eligible to adjust their status to a lawful permanent resident, or get their green card, but for the departure from and return to the US that was created by first obtaining DACA status and then obtaining permission to travel abroad through Advance Parole!