Are you a DACA recipient considering permanent residence in the United States? Do you want to live and work anywhere in the United States legally?
If you answer yes to these questions, this guide will help you weigh your options and choose the best application path for your United States green card. It will also discuss the various hurdles you need to avoid and the requirements for each green card application path.
What Is DACA?
This is a United States immigration policy that allows individuals who have an unlawful presence, after arriving in the country as children, to get a work permit and receive a 2-year deferred action period.
Can You Apply For A Green Card Directly If You’re A DACA Recipient?
The current immigration laws do not allow Deferred Action for Childhood Arrivals (DACA) recipients to directly apply for a Green Card. However, if you’re a DACA recipient married to a U.S. citizen, you might be eligible to apply for a Green Card if you meet certain requirements.
For example, you must have entered the United States lawfully to be considered for a Green Card. It is, therefore, crucial to seek legal advice before proceeding to apply for a green card.
What Is A Marriage Green Card?
This is a document that allows you to live and work anywhere in the United States of America, provided you are a spouse of a U.S. citizen. Usually, marriage green cards are issued to spouses of U.S. citizens or spouses of other green card holders if they meet the set requirements.
Can I Obtain A Marriage Green Card As A DACA Recipient?
This is possible, but it will depend on several other factors. Since U.S. citizens are allowed to marry anyone they want to, you have to prove that the marriage is valid and in good faith. If your spouse is a permanent resident, you may not be eligible for a permanent resident card. In this situation, you need to apply for this card from outside the United States, at a U.S. embassy or consulate. This immigration policy applies even if you and your parents all arrived in the U.S. with valid Visas or valid travel permits.
Does Marrying A U.S. Citizen Automatically Guarantee A Green Card If You’re A DACA Recipient?
Some people think that marrying a U.S. Citizen or permanent resident guarantees a permanent residency card. This is somehow true, but the eligibility varies from person to person due to differences in cases. The most important factors to consider are whether the DACA holder was legally inspected by a U.S. Customs and Border Protection (CBP) agent, and the status of their spouse.
Currently, Deferred Action for Childhood Arrivals does not lead to an automatic permanent residency, although those with DACA have options to get green cards and become permanent U.S. residents. Before applying for a permanent resident card, it is advisable to seek further legal advice from an immigration attorney.
Factors That Determine Eligibility If You’re Married To A U.S. Citizen
For this option to work effectively, your spouse needs to be a U.S. citizen and must have all the right documentation to prove their citizenship.
The first thing that USCIS officials look at when you apply for a permanent resident card is how you entered the United States. If you entered the country legally, you have better chances of getting your application approved. Entering the U.S. legally means that you were inspected by a U.S. customs official upon arrival, and got cleared.
What If You Entered The United States Illegally Or Under False Pretense
This makes it even more difficult to obtain a marriage-based green card. You may have to go back to your country of origin and apply for a marriage-based green card through the local U.S. embassy or consulate. Beware that this could trigger a three-year or a 10-year ban depending on your period of stay in the United States through the unlawful entry. Accrual of more than 180 days of illegal presence triggers a 3-year ban after you travel out of the country.
What To Do If You Entered The U.S. Illegally And Your Spouse Is A U.S. Citizen
If you entered the U.S. illegally or without a travel permit, it could decrease your chances of obtaining lawful status even if your spouse is a U.S. citizen. To avoid potential bans and year-long delays, you must seek a Provisional Unlawful Presence Waiver.
To qualify, you’ll need to prove to the government that your long-term absence could have a detrimental effect on the other spouse and that she/he needs you in the United States. You must also show why both of you cannot live comfortably in your home country. Even so, all hope is not lost if you’re a DACA recipient who entered the U.S. illegally.
Do You Require A Waiver If You’re A DACA Recipient?
DACA holders do not require waivers since their DACA statuses protect them from being considered illegal in the U.S. The consequences of unlawful presence in the United States depend on how long the immigrant has been living illegally in the country.
Unfortunately, obtaining these waivers is complicated, mostly for young couples who have no children. Therefore, it is advisable to consult an experienced immigration attorney for legal advice prior to applying for the waiver.
You Entered The U.S. Illegally More Than Once Under Pretense Or Without Documentation
If you entered the U.S. multiple times illegally, you risk a permanent ban from re-entering the country. This ban comes without the probability of a waiver even if you’re a DACA recipient married to a U.S. citizen.
When this happens, your chances of obtaining a Green Card through marriage are significantly reduced. If you have accrued more than a year of unlawful presence in the U.S. and attempted to enter the U.S. again without proper permission, then you risk getting a permanent ban.
How To Apply For A Marriage-Based Green Card If You’re A DACA Recipient And Entered The U.S. Illegally
Let’s say you entered the U.S. illegally, but you got married to a U.S. citizen; you may apply for a green card under the following conditions:
If you have an Advance Parole Travel Document (travel permit), you must leave the United States and then return after a legal inspection by the CBP to qualify for a marriage-based green card application within the U.S.
If you were below 18 years when obtaining your DACA or applied for it 180 days after turning 18 years, you must return to your original country to apply for permanent residence through a U.S. embassy.
Also, you may have spent over 180 days between turning 18 years and your DACA application, but you do not have a travel permit. If that’s the case, you will apply for permanent residence at your country’s U.S. embassy or consulate. If you attempt to apply for permanent residence while still in the U.S., you may be banned from entering the U.S. for a maximum period of ten years. If you illegally enter the U.S. at least twice, you risk getting a permanent ban with no waiver.
Lastly, if your spouse is a permanent resident of the U.S., you cannot apply for permanent residence while still in the U.S., even if you have a valid visa or a travel permit.
Can You Apply For A Marriage Green Card If Your Visa Expired
If you entered the U.S. with a valid visa as a child, but the Visa expired, your initial entry was legal; hence your presence in the U.S. is lawful. As long as you never departed from the U.S. since you first came, the USCIS recognizes your presence as lawful, and you can apply for permanent residence. You will need evidence, though, of your lawful admission and your DACA application to apply for permanent residence.
In that scenario, you can apply for a marriage green card even when your Visa is expired by proving that you overstayed due to marriage obligations.
What If You Applied For DACA Before Turning 18?
Let’s assume you applied for DACA before turning 18 or within 180 days after turning 18. In that case, you can travel back to your origin country and apply for a marriage-based green card through the U.S. consulate in your country, just as anyone would if they were living abroad and applying for a green card based on marriage to a U.S. citizen.
Past Violations That Can Be Used As Grounds Of Inadmissibility For A DACA Recipient Applying For A Marriage Green Card
The issues listed below may hinder your path to permanent residence:
• If you’ve ever committed a crime or felony
• Using forged documents
• Traveling outside the United States without authorization
How DACA Recipients May Apply For Green Card Through Marriage
If you’re a DACA recipient and you have no other legal issues that would prevent you from obtaining a marriage-based green card, you may apply to adjust your status with the USCIS. In this case, there are usually six compulsory forms that you need to file as listed below:
• Application to Register Permanent Residence or Adjust Status (I-485)
• Petition for Alien Relative (I-130)
• Affidavit of Support (I-864)
• Declaration of Self-Sufficiency (I-944)
• Medical examination report (I-693)
• Supplemental Information for Spouse Beneficiary (I-130A)
How To Transition From DACA To Green Card Through Marriage
As a DACA recipient, marrying a U.S. citizen gives you the eligibility criteria required to apply for a permanent resident card. You must, however, not get married for the sole purpose of acquiring permanent residence as it is considered unlawful. If found guilty of marriage fraud, it could lead to severe consequences, including deportation.
There are two ways through which DACA recipients can apply for Green Card:
1. Through Consular Processing
Here, an applicant travels outside the U.S. to apply for permanent residency at a U.S. embassy or consulate. To get a permanent resident card through this process, you must first meet all the requirements for receiving Green Cards in the United States. Usually, the consular process involves traveling to your home country and applying for an immigrant visa.
2. Adjustment Of Status
As a DACA recipient, you can apply from within the country (U.S.) if you had a lawful entry into the country, and you were inspected by a CBP agent.
If you are a DACA recipient married to a green card holder or U.S. citizen, there are so many legal factors that need to be considered when applying for permanent residency through marriage. The best thing to do, in this case, is to contact a respected law firm and seek to speak with an immigration attorney.