Can a DACA recipient apply for a green card by marriage?

What is DACA?

Deferred Action for Childhood Arrivals (DACA) is a policy created in 2012 by the executive order of then U.S. President Barack Obama. The aim of the program is meant to protect those individuals who came to the U.S. as children and do not have citizenship or legal resident 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 protection 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 currently enrolled in school
•  They must not 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 without legal status and meet the qualifications for DACA, 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 the 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 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 deemed as a threat to public safety or national security during this time, you may also be denied renewal.

How much does it cost to apply for DACA?

According to the USCIS website, it costs $495 to apply for DACA. This includes 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 get a green card by marriage?

Through the DACA program, recipients are allowed to study, live and work in the U.S. with the protection against deportation. However, this program does not yet provide a path to a green card or U.S. citizenship. For this reason, many DACA recipients need to search for alternative routes for gaining permanent residency. One of the most common ways for dreamers to be sponsored for permanent residency is through a family-based green card. You can apply for a green card if you are married or the immediate relative to a U.S. citizen or legal permanent resident.

If a dreamer marries a U.S. citizen or legal permanent resident they may be eligible for an IR1/CR1 (Marriage-Based Green Card). However, the application process for this visa is not straightforward and can depend on certain factors such as if the foreign spouse entered the United States legally and if the spouse is a legal permanent resident (a green card holder).

If the DACA recipient entered the United States lawfully

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.

Lawful entry and marriage to a U.S. citizen

DACA recipients who entered lawfully and are married a U.S. citizen can apply for an IR1/CR1 visa (Marriage-Based Green Card) the same way as any other green card applicants do without too much hassle.

Unlawful entry and marriage to a U.S. citizen

You can be classified as entering the U.S. unlawfully if you entered the United States without a valid visa or an approved visa waiver and without inspection from the U.S. Customs and Border Patrol. DACA recipients who entered the U.S. unlawfully, are married to a U.S. citizen and who want to apply for a green card through marriage have that option. However, this green card application process and the immigration law involving it can get very complicated.

Marriage between a DACA recipient and a permanent resident

DACA recipients married to green card holders can get a green card through “consular processing”. For this, you must travel to your home country and apply for a green card through marriage via the U.S. Embassy or consulate. Keep in mind that this process with take longer because you will have to wait for your application to become current in the visa bulletin.

Legal entry by Advance Parole

Advance Parole allows 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. DACA recipients who wish to travel abroad must first file for advance parole before leaving the country. If they leave without it, their DACA status will 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. After re-entering the United States, you can then apply for a marriage-based green card within the U.S.

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.

Lawful Entry by “Consular Processing”

If you obtained DACA before you turned 18 or applied within 180 days of your 18th birthday and are married to a U.S. citizen, you can apply for a marriage-based green card by “consular processing”. Through this process, the foreign spouse must return to their country of birth and apply for a marriage green card abroad. If the immigrant visa application is approved, the DACA recipient can return to the U.S. as a lawful permanent resident (aka a green card holder).

What happens if I applied for DACA more than 180 days after turning 18?

If you applied for DACA more than 180 days after your 18th birthday and never re-entered on an Advance Parole travel permit, you may be subject to a re-entry bar due to “unlawful presence”. “Unlawful presence” is counted as every day that you are in the country illegally. Before the age of 18, an individual is not subject to unlawful presence but every day after turning 18 does count towards unlawful presence. If someone has between 180-365 days of unauthorized stay (aka, being without legal status), they may be subject to a 3-year bar from entering the U.S. If someone is without legal status for more than a year, that person may be subject to a 10-year re-entry bar.

The I-601A Provisional Waiver

To try to avoid any re-entry bars, you can apply for a “Provisional Unlawful Presence Waiver” by submitting Form I-601A to the United States Citizenship and Immigration Services (USCIS). Under this waiver, you must show evidence that you will face ‘extreme hardship’ if you are deported from the U.S. Also, you must demonstrate compelling evidence on why you and your spouse can not live together in your country of origin while waiting out the re-entry bar. This is a complicated application, so it is strongly advised that you seek the help of a skilled and experienced attorney who is familiar with this type of immigration law before pursuing this route.

Permanent Bar

Immigration law states that if an individual has entered the United States without lawful entry more than once, that individual will be subject to a permanent bar that will prevent them from re-entering the country no matter the situation or the evidence provided to defend the action. Furthermore, the I-601A (Provisional Unlawful Presence Waiver) can not be applied to those individuals who are permanently barred.