Can a DACA recipient apply for a green card by a family member or employer sponsorship?

What is DACA?

Deferred Action for Childhood Arrivals (DACA) is a program created in 2012 by the executive order of then U.S. President Barack Obama.  Its goal is to protect undocumented individuals (those without lawful permanent resident status) from deportation. It specifically is aimed at those individuals who came to the U.S. as children with their families and currently do not have citizenship or legal immigration status. These individuals are often referred to as ‘Dreamers’ as a reference to a similar immigration policy known as the DREAM Act which was introduced in 2001 but failed to pass in the U.S. Senate.

Under this program, DACA recipients (aka dreamers) are protected from deportation and granted necessary access to work permits, a social security number, employer-offered health insurance, driver’s licenses, and many other privileges. The temporary protected status granted by DACA lasts 2 years and can be renewed. However, at this moment, this program does not allow legal status or a pathway to lawful permanent resident status.

What are the requirements for DACA?

In order to apply for DACA, the applicants must meet the following main requirements:

• They must have entered the United States prior to their 16th birthday
• They must have lived in the U.S. continuously since June 15, 2007
• They must have been under the age of 31 on June 15, 2012 (This means that they were born on or after June 16, 1981)
• They must make a request for an application to DACA
• They must be without lawful immigration status
• They must have completed high school, obtained their GED, been honorably discharged from the military, or are currently enrolled in school
• They must have a clean criminal history and pose no threat to national security or public safety (no serious criminal convictions)

What forms are needed to apply for DACA?

If you are a person interested in applying to the DACA program, you must first submit the following:

• Form I-821D (Consideration of Deferred Action for Childhood Arrivals)
• Form I-765 (Application for Employment Authorization Document)
• Form I-765 Worksheet
• Proof of Identity (passport, birth certificate with photo I.D., school or military I.D., or any other government-issued photo I.D.)
• Proof you came to the U.S. prior to your 16th birthday (Proper documentation can include: Passport stamp, valid visa, school records, any immigration documents stating your date of entry, travel records, hospital or medical records, employment records, mortgage, or rental agreement contracts, etc)
• Proof of immigration status (examples include: Form I-94/I-95/I-94W with an expiration date of authorized stay, any final order of deportation, exclusion, or removal issued as of June 15th, 2012)
• Proof of presence in the U.S. on June 15th, 2012 (ex. household records, school records, military records, etc)
• Proof of continuous residence since June 15th, 2007 (supporting documents can include household records, school records, lease or mortgage agreements, etc)
• Proof of your student status (if applicable).
• Proof of an honorable discharge from the Coast Guard or Armed Forces (if applicable).

After you have submitted the forms, you will then need to schedule and attend a biometrics appointment at a local US Citizenship and Immigration Services (USCIS) Application support center. After all of the information is submitted, you can check your status online by logging into your USCIS online account or by going to Case Status Online.

Can I renew my DACA status?

If you are renewing your current DACA registration and have not violated the term agreements, you must re-submit the following:

• Form I-821D (Consideration of Deferred Action for Childhood Arrivals)
• Form I-765 (Application for Employment Authorization Document)
• Form I-765 Worksheet
• Any relevant documents providing new evidence to your application

Make sure that you pay the correct amount in fees ($495) and renew within 120-150 days before your current DACA expires or you may be denied renewal. In addition, if you left the U.S. during this time without advanced parole, committed a serious crime, or were deemed as a threat to public safety or national security during this time, you may also be denied renewal.

What is Advance Parole?

If you are a DACA recipient who wants or needs to travel abroad without risking your immigration status, you must apply for advance parole. Advance Parole will allow DACA recipients to return to the U.S. after traveling abroad for humanitarian (seeking medical treatment, attending a family funeral, or visiting an ailing relative), educational (study abroad, academic research), or work-related purposes. It is important that you first file for advance parole before leaving the country otherwise if you leave without it, your DACA status will then be terminated with immigration services.

However, if a DACA recipient receives a travel permit through advance parole, leaves the country, and returns successfully, that entry into the U.S. is considered lawful and satisfies the legal entry requirement.

Since this is a complicated issue, it is best to consult with an experienced immigration attorney who can best advise you on your eligibility and options as well as guidance on how to apply for advance parole. It is recommended that you do not travel on advance parole without first consulting an immigration lawyer.

How much does it cost to apply for DACA?

According to the US Citizenship and Immigration Services website, the current fee to apply for DACA is $495 and will include employment authorization and biometric services. As of July 2021, this fee can not be waived. If you wish to renew, you must also pay $495.

Can DACA recipients apply for family-based green cards?

DACA recipients who are the immediate relative of a green card holder or a U.S. citizen can be sponsored for a family-based green card. These family-based green cards are available to spouses, parents, children, and siblings. In other words, DACA recipients are eligible for a green card if:

• they are married to a U.S. citizen or a green card holder
• they are the child or step-child of a U.S. citizen or green card holder
• they are the parent of a U.S. citizen who is at least 21 years old
• they are the sibling of a U.S. citizen

It should be noted that applying for a family-based green card is easier if the DACA recipient originally entered the country via lawful entry. This means that the individual entered the U.S. on a valid visa or on the visa waiver program.

To enter the U.S. lawfully means to have entered the United States ‘with inspection’. This means that the individual entered the country with a valid visa and was inspected by an officer from U.S. Customs and Border Protection or entered the country through the Visa Waiver Program (meaning that they came from a country that did not need a visa to temporarily visit the U.S.).

If a dreamer originally entered the United States ‘with inspection’ and then overstayed their visa which in turn made them undocumented immigrants, that person can be considered as satisfying the lawful entry requirement as long as they have stayed in the U.S. and not left since they first entered.

Can DACA recipients apply for a green card through employer sponsorship?

DACA recipients who are in highly skilled professions may be eligible for an employer-sponsored green card. There are a variety of work-based green cards available depending on the skill level of the applicant. A majority of these visas will need the visa applicant to first obtain a PERM labour certification from the Department of Labor before the employer can file an employment sponsorship petition.

This can be a lengthy process that can take years to complete. If you believe that you are eligible for an employment-based visa, consult an experienced immigration attorney who specializes in these types of visas. Your lawyer should let you know what types of work-based visas you are eligible for and what steps you will need to take to meet the requirements. Some employment-based work visas that offer permanent residence are:

• O-1 Visa (Individuals with Extraordinary Ability Green Card)
• EB1 Visa (Extraordinary Ability Green Card)
• EB1-2 Visa (Outstanding Researcher / Professor Green card)
• EB2 Visa (Second Preference Employment-based Visa)
• EB3 Visa (Worker’s Green Card)

Can undocumented immigrants apply for asylum?

Asylum can be granted to any individual who would like to come to the United States to escape persecution in his or her country. In order to make a claim for asylum, the following is required:

• The asylum seeker is present in the United States by either lawful or unlawful entry
• The asylum seeker is unable or unwilling to return to his or her home country due to past persecution or because of a well-founded fear of future persecution if returned to their home country
• The persecution is due to race, religion, nationality, membership in a particular social group or political opinion
• The individual is not involved in any activity that would make them ineligible for asylum

Gang violence and poverty do not generally qualify someone for asylum status in the United States. Persecution must be committed by the government or by a group that the government is unwilling or unable to control. Furthermore, asylum applicants must submit evidence that demonstrates persecution or a well-founded fear of persecution.

Those who enter the United States have a deadline of 1 year to apply for asylum. However, this deadline does not apply to children under the age of 18 years old. Therefore, asylum applications can not be denied for late filing if the asylum seeker files for asylum within a year after turning 18 years old or even anytime they file while they are under the age of 18.

If asylum is granted, individuals can then file for a green card one year later.

How to become a U.S. citizen

In order to become a U.S. citizen, you must first begin your life in the U.S by getting a green card to become a lawful permanent resident. After you have held lawful permanent residence in the U.S. for at least five years, you will be eligible to apply for naturalization. In addition to the five years requirement, there are other requirements that you will need in order to become a U.S. citizen. These include:

• Being at least 18 years old
• Proving that you have had continuous residence in the U.S for at least two and a half years during the five-year qualifying period
• Being able to read, write, and speak the English language
• Demonstrating that you are of good moral character
• Demonstrating knowledge of U.S. history and government
• Demonstrating loyalty to the principles of the U.S. Constitution
• Taking the Oath of Allegiance

You can apply for citizenship through naturalization by filling in form N-400, which can be done online or on paper. When you submit your application form, you will also need to provide a number of supporting documents to prove that you can meet the above requirements. You may also have to attend an interview as part of the naturalization process.

How can IAS help me?

Although dreamers are safe from deportation, the DACA program does not currently provide a green card or a pathway to citizenship. If you are a dreamer who is interested in staying in the U.S. permanently, you should consider applying for a green card which is the first step in becoming a U.S. citizen. Our team of lawyers can help you best navigate the complicated process of U.S. immigration.

Get in touch with us today to discuss your eligibility and your unique case. Call us at +1 844 290 6312 for immediate help & assistance with your green car. We’re here to help you in person, via the phone, or online.