Adjusting Status with DACA: A Comprehensive Guide

The Deferred Action for Childhood Arrivals (DACA) program, initiated in 2012 by the Obama administration, offers protection from deportation and work authorization for certain undocumented immigrants who came to the U.S. as children. While DACA offers temporary relief, it doesn’t provide a direct path to permanent residency or citizenship. For DACA recipients (often called “Dreamers”), the pathway to legal permanent residency (a green card) might seem uncertain, but there are routes that some individuals might take. Here’s a comprehensive look at how one might adjust their status if they are a DACA recipient.

Understanding the Basics: DACA and Adjusting Status

DACA is an executive order introduced under President Barack Obama’s administration in 2012. It was designed as a protective measure for undocumented immigrants who arrived in the U.S. as minors. Let’s break down its key elements:

Temporary Relief: 

One of the primary benefits of DACA is the deferral of deportation actions. This means that even though a DACA recipient might be undocumented, the U.S. government will not actively seek to remove them from the country for the duration of their DACA status, provided they abide by the terms of the program.

Work Authorization: 

DACA recipients receive Employment Authorization Documents (EAD), allowing them to legally work in the U.S. This work permit is renewable but is contingent on maintaining DACA status.

No Lawful Status: 

While DACA offers certain protections, it does not change the recipient’s legal status. Even with DACA protection, an individual remains undocumented. It’s a key distinction because, while they’re protected from deportation and can work, they don’t have the benefits of lawful permanent residents or citizens.

Renewability: 

DACA status and the associated work authorization are renewable every two years. However, renewal is not automatic, and recipients must proactively apply and demonstrate continued eligibility.

No Direct Pathway: 

DACA does not directly provide a pathway to obtain a green card, citizenship, or permanent legal status. This means that, without other avenues (like family or employer sponsorship), DACA recipients remain in a sort of limbo—protected but not progressing toward permanent legal status.

Adjustment of Status

The adjustment of status is the procedure used by an eligible candidate already in the U.S. to apply for lawful permanent resident status (or a green card). Here are its fundamental aspects:

Eligibility: 

Not everyone can adjust their status. Eligibility is typically based on family relationships (like being the spouse or child of a U.S. citizen), employment opportunities, or other specific conditions (e.g., asylum or refugee status).

Immigrant Visa Number: 

To adjust status, there must be an immigrant visa number available for the applicant. In many categories, there are annual limits on the number of visas issued, leading to waiting periods.

Approved Petition: 

Before adjusting status, there typically needs to be an approved immigrant petition. For family-based adjustments, this is often Form I-130, Petition for Alien Relative. For employment-based adjustments, it could be Form I-140, Immigrant Petition for Alien Worker.

Physical Presence: 

The applicant must be physically present in the U.S. to adjust their status. If they are outside the U.S., they would typically need to pursue consular processing.

Lawful Entry: 

One of the most significant barriers for many DACA recipients is the requirement that the adjustment of status applicant must have made a lawful entry into the U.S. This means they were inspected and admitted or paroled at a U.S. port of entry. Many DACA recipients originally entered without inspection, complicating this process.

DACA offers valuable protections and benefits, it operates independently of the pathways to permanent legal residency in the U.S. Adjusting status requires navigating a separate and often complex process, contingent on individual circumstances. Always consult with an immigration attorney to understand the nuances and potential pathways based on personal situations.

Potential Pathways to Adjust Status

For DACA (Deferred Action for Childhood Arrivals) recipients, the transition from their temporary status to lawful permanent residency (often referred to as getting a green card) can be complex. It’s essential to understand the unique pathways and intricacies available to them:

1. Family Sponsorship

Immediate Relative of a U.S. Citizen:

Eligibility: DACA recipients who are the spouse, parent (of a U.S. citizen child who is at least 21), or unmarried child under 21 of a U.S. citizen can be sponsored as an “Immediate Relative.”

Benefits: This category is privileged because there’s no annual cap on the number of visas issued, meaning there are no prolonged waiting times.

DACA-Specific Challenges & Solutions:

Lawful Entry Requirement: For an adjustment of status, one usually needs to have entered the U.S. lawfully. Many DACA recipients entered without inspection, which complicates matters.

Advance Parole: In past years, DACA recipients could obtain Advance Parole to travel abroad for specific reasons. Upon return, their re-entry is often treated as a “lawful entry,” allowing for potential adjustment of status if other requirements are met. However, traveling on Advance Parole has its risks, and it’s crucial to get legal advice before pursuing this route.

Provisional Waiver: In cases where unlawful presence is a barrier, DACA recipients who have a qualifying U.S. citizen relative might be eligible for a provisional waiver. This waiver, if granted, can minimize the risk of being barred from re-entry after departing the U.S. for consular processing.

2. Marriage to a U.S. Citizen or Lawful Permanent Resident (LPR)

While this is technically part of family sponsorship, it deserves separate mention due to its commonality.

Eligibility: DACA recipients who marry a U.S. citizen or LPR can be sponsored by their spouse.

Benefits: Marriage to a U.S. citizen typically accelerates the green card process because spouses of citizens are considered immediate relatives.

DACA-Specific Challenges & Solutions: The same issues of lawful entry apply, so Advance Parole or the Provisional Waiver strategy might be considered.

3. Employment-Based Sponsorship

Eligibility: If a DACA recipient has a unique skill set, an employer might be willing to sponsor them for a green card.

Benefits: This pathway isn’t dependent on family ties and can lead to permanent residency based on professional qualifications.

DACA-Specific Challenges: The employer must often demonstrate that there are no available U.S. workers for the position. Additionally, the typical lawful entry requirements apply.

4. Special Immigrant Juvenile Status (SIJS)

Eligibility: Some DACA recipients who are under 21 and have been abused, neglected, or abandoned by one or both parents might qualify.

Benefits: SIJS can lead directly to a green card.

DACA-Specific Considerations: Age is crucial here; applicants must be under 21. Moreover, SIJS requires a state court order declaring the applicant as dependent on the court or appointing a guardian.

5. Other Special Programs

U Visa: DACA recipients who have been victims of certain serious crimes and have assisted or are willing to assist law enforcement in the investigation or prosecution of the crime might qualify for a U visa, which can eventually lead to a green card.

T Visa: This is for victims of human trafficking and also provides a potential path to permanent residency.

6. Future Legislative Changes

The legal landscape for immigration is continually evolving. New bills and changes to existing laws could provide additional avenues for DACA recipients in the future. It’s crucial to stay updated.

In all cases, adjusting status is a nuanced process. DACA recipients seeking to adjust their status should always consult with an experienced immigration attorney to understand their specific situation and potential pathways.

Potential Barriers

DACA recipients, while benefitting from temporary protections, face a unique set of challenges when trying to adjust their status to become lawful permanent residents. Let’s delve into potential barriers particularly relevant to those with DACA:

1. Unlawful Entry

Many DACA recipients entered the U.S. as children without inspection. This poses a significant challenge, as an individual who entered without inspection usually can’t adjust status within the U.S., even if they have an eligible family or employment sponsor.

2. Accumulation of Unlawful Presence

While DACA grants lawful presence, it does not grant lawful status. Before obtaining DACA, many recipients may have accumulated unlawful presence, which could result in re-entry bars if they leave the U.S.:

  • More than 180 days but less than one year of unlawful presence followed by departure can result in a 3-year re-entry bar.
  • One year or more of unlawful presence can result in a 10-year re-entry bar.

3. Limited Pathways to Green Card

DACA, by itself, does not provide a direct pathway to a green card. Unless DACA recipients have other qualifying relationships (like marriage to a U.S. citizen) or fit into specific visa categories, they might not have a clear route to adjust status.

4. Prior Removal Orders

Some DACA recipients might have been placed in removal proceedings before receiving DACA or might have received removal orders in absentia. Even if the deportation was not executed due to DACA, that removal order can still be a significant barrier.

5. Economic Concerns

The costs associated with adjusting status, from application fees to medical exams and legal representation, can be burdensome. Given that some DACA recipients might come from economically disadvantaged backgrounds, these costs can present significant hurdles.

6. Advance Parole Risks

Although DACA recipients could previously obtain Advance Parole to travel abroad and re-enter the U.S., thereby converting their entry to a “lawful” one, this process is fraught with risks. There’s no guarantee of re-entry, and the current or future administrations might change policies regarding Advance Parole for DACA recipients.

7. Criminal Convictions

DACA recipients undergo background checks, and certain criminal convictions can disqualify them from DACA. If they’ve been convicted of a significant misdemeanor, three or more misdemeanors, or a felony, it will not only impact their DACA eligibility but also pose challenges to adjusting status.

8. Public Charge Rule

Recent and fluctuating interpretations of the “public charge” rule might affect DACA recipients if they’ve accessed certain public benefits, which can be used as a negative factor when applying for a green card.

9. Uncertainty of the DACA Program

The political and legal challenges surrounding DACA mean that its future remains uncertain. Changes or rescinding of the program can impact the ability of recipients to work, study, and potentially adjust status in the future.

10. Administrative and Policy Changes

Changes in immigration policy, often introduced via executive actions or directives, can impact processing times, requirements, and the overall likelihood of successfully adjusting status.

Navigating the Process

Here’s a detailed overview of the process for obtaining DACA:

1. Eligibility Criteria

Before applying, individuals must ensure they meet the following eligibility requirements:

Age and Entry Requirements:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the U.S. before their 16th birthday;
  • Have continuously resided in the U.S. since June 15, 2007, up to the present time;
  • Were physically present in the U.S. on June 15, 2012, and at the time of making the DACA request.

Educational Requirements:

  • Are currently in school, OR
  • Have graduated or obtained a certificate of completion from high school, OR
  • Have obtained a General Education Development (GED) certificate, OR
  • Are an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.

Criminal Background:

  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not pose a threat to national security or public safety.

Lack of Lawful Status:

  • Were without lawful status on June 15, 2012.

2. Collect Necessary Documentation

Applicants need evidence to prove their eligibility. This might include:

Proof of Identity: Birth certificate, passport, school or military ID, or any U.S. government immigration or other document bearing the applicant’s name and photo.

Proof of Arrival in the U.S. Before Age 16: Passport with admission stamp, school records, travel records, or other relevant documentation.

Proof of Presence on June 15, 2012: Rent receipts, utility bills, employment records, school records, etc.

Proof of Continuous Residence: Tax returns, employment records, school records from June 15, 2007, to the present.

Proof of Educational Status: School transcripts, report cards, diploma, GED certificate, or evidence of honorably discharged veteran status.

3. Complete the Necessary Forms

The USCIS (U.S. Citizenship and Immigration Services) requires the following forms:

  • Form I-821D: Consideration of Deferred Action for Childhood Arrivals
  • Form I-765: Application for Employment Authorization
  • Form I-765WS: Worksheet, which explains your economic need for employment.

4. Pay the Fees

The fee for DACA application is $495. This includes $410 for the employment authorization and an $85 biometric services fee. Ensure you’re checking the most up-to-date fee structure on the USCIS website or with a legal professional.

5. Submit the Application

Mail the completed forms, along with the required documentation and fees, to the appropriate USCIS service center. It’s highly recommended to make copies of everything you send for your records.

6. Attend a Biometrics Appointment

After submitting your application, USCIS will schedule a biometrics appointment at a local Application Support Center. This is where they’ll take your fingerprints, photo, and signature.

7. Wait for a Decision

Once everything has been processed, USCIS will notify you of their decision in writing. If approved, you will receive an Employment Authorization Card, which is valid for two years (subject to renewals).

8. Renew as Necessary

DACA is a temporary program, and recipients need to renew their status every two years. It’s advisable to apply for renewal about 120 days before your current period of deferred action expires.

Conclusion

While DACA provides essential protections, it’s a temporary measure. Adjusting status from DACA to a green card remains a challenging process, laden with potential pitfalls. However, by understanding the available routes, consulting experts, and staying informed, DACA recipients can maximize their chances of successfully navigating the path toward permanent residency.

Remember, the landscape of U.S. immigration law is ever-evolving. It’s crucial to stay updated on any legislative changes that may provide additional pathways or requirements for adjustment of status.

At Costas Network Law Center, we have the experience having been blessed with the opportunity to helped many dreamers navigate this complicated path to achieve their end goal. Contact us today so we can help you do the same.

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