When Deferred Action for Childhood Arrivals (or "DACA") was created in 2012, it was never intended to create a path to permanent residence. Many holders of DACA have no path to permanent residence immediately available, and some may never have one. It is for this reason that there is so much political debate about the future for DACA holders.

At the same time, it has always been true that some DACA holders have or will have a path to permanent residence that has nothing to do with DACA itself. A foreign national who is married to a U.S. citizen, and whose most recent entry to the United States was with a valid visa (or through the Visa Waiver Program), can usually apply for a family-based green card (assuming no other obstacles or issues). The same is true of foreign nationals who are parents of U.S. citizens of age 21 years or over and who entered with a valid visa or through the Visa Waiver Program. Of course, they must consult carefully with a qualified attorney to see if events or circumstances in their particular case might pose special problems.

But for those who entered the United States illegally, DACA has indirectly and perhaps even unintentionally created two routes to permanent residence that will benefit some foreign nationals who are beneficiaries of approved family petitions.

First, most beneficiaries of family petitions who entered the United States illegally are required to complete their immigration interview outside the United States and face a 3- or 10-year bar against returning once they leave. The bar is triggered for anyone who accumulates more than 180 days of "unlawful presence" and then departs the country, which is obviously a huge portion of applicants. Those who can show extreme hardship to a U.S. citizen or Lawful Permanent Resident spouse or parent can apply for a waiver that will cancel the bar. Hardship to one's children or one's self is not counted. Such waivers can be difficult to win, costly, and long in adjudication. The good news is that "unlawful presence" days are not counted before an applicant's 18th birthday, nor during the time that an applicant holds DACA. This means that an applicant who has held DACA continuously since before turning 18 years and 181 days old will not have enough "unlawful presence" to trigger the 3- or 10-year bar. Such applicants who entered the U.S. illegally will still be required to complete their interview outside the country, but they will no longer need a waiver. This is an enormous advantage given the difficulty of gaining a waiver, but let a qualified attorney determine whether it applies to you.

Secondly, DACA provided a method by which a DACA holder could apply for travel authorization, an opportunity that no longer exists but that many took advantage of while they could. Anyone who departed and returned using a validly issued travel authorization can now say that their last entry was not "illegal" and will not need to interview outside the U.S. or require a waiver at all. These fortunate applicants can apply for permanent residence as the beneficiary of their U.S. citizen spouse or over-21-year-old child locally and complete their whole process without leaving the United States. This process could be complicated if the applicant has a history with the immigration court or has been in removal or deportation proceedings, and departing the U.S. is a risk that should never be taken without consulting with a qualified attorney. If you have previously traveled with authorization (or if a now-pending lawsuit brings back travel authorization) consult with an attorney to decide if travel is safe for you and could help in your situation.

The bottom line is that nobody yet knows whether DACA will lead directly to a path to permanent residence. But even if it does not, it may still be of use to some. Therefore, one thing known clearly is that anyone with DACA should strive to maintain it without interruption. Anyone who lost DACA or let it lapse should do everything possible to reacquire it. Any benefits that may proceed from holding DACA will obviously be difficult or impossible to attain if your status lapses.

Almost all applicants for Permanent Residence must take and pass a medical exam administered by a U.S. Civil Surgeon, which is just a physician who has been approved by USCIS for these purposes. You must ensure that the physician you use is approved by USCIS. The exam consists principally of tests for tuberculosis, syphilis, and gonorrhea, blood and urine tests, vaccinations where necessary, and a few other screenings. Results are given in a sealed envelope, but you should insist on receiving an open copy as well so that you or your attorney can review for errors in filling out the form that may cause substantial delays with your case. The forms are poorly designed, and so errors by the medical staff are not uncommon. Sometimes, conditions irrelevant to medical eligibility such as pregnancy are erroneously listed as serious health conditions that imply a need for long-term institutionalization or incapacity. It is best to catch these before submitting the results to USCIS.

Medical exams conducted outside the United States for those who are consular processing abroad are even more problematic. Staff at these facilities may aggressively question applicants about past alcohol or substance abuse, even in the far past, attempting to elicit a "confession" that can render an applicant temporarily or permanently inadmissible. Some reports state that even an admission to casual use of alcohol has led to the requirement of lengthy alcohol "counseling" before a visa can be issued. There is also an extensive inquiry into any tattoos that applicant may have as staff attempt to determine whether they represent gang affiliation. If you have any potential issues concerning alcohol, controlled substances, or tattoos you should speak in depth with an attorney to assess whether you can safely navigate this process and how best to handle any questions truthfully without creating unnecessary problems.

If you have objections to vaccines, discuss this with your attorney before advancing too far in this process. Although the law provides for religious exemptions they are difficult to obtain and require proof of a sincerely held religious belief. Objections not based on religion carry no weight at all. Pregnant applicants should also discuss the implications with their attorney to see how vaccinations and chest x-rays will be handled and whether it is best to proceed with the exam while pregnant or to wait.

In most cases, a person who entered the United States without inspection (i.e., without presenting documents to an official) cannot obtain a green card without leaving the country which runs the risk of a 10-year bar against returning). A grant of Parole in Place allows an applicant to seek a green card without departing the United States, which is safer, more convenient, and can be done with greater legal protections.
The application is discretionary, meaning that approval is not automatic. The Department will look at hardship to the military servicemember and the applicant’s history of good conduct in the community.

After being granted Parole in Place, the applicant will get work authorization but must still fulfill all other requirements for a green card. Among other requirements, a green card will only be immediately available if the applicant is the Immediate Relative of a U.S. citizen. An Immediate Relative is a spouse, a child under 21 years of age, or a parent where the child-citizen is 21 years of age or over. Those in other categories (adult or married sons/daughters of U.S. citizens, siblings of U.S. citizens, and spouses or children of lawful permanent residents (LPRs)) will usually not qualify for a green card because they are required to have never fallen out of lawful immigration status. This is a restriction that does not apply to immediate relatives as listed above.

Be aware that the future of the Parole in Place program is in question under the current presidential administration. Be sure to get the most current information before pursuing this option.

To determine whether your current or former military status could make a difference in the immigration status of your family members, always consult first with a licensed attorney experienced in immigration.

I know that many are extremely worried about the recent developments in immigration law and enforcement. Here at our office we share your concerns and working as hard as we can to stay current with all the changes and be able to provide the best advice possible in this rapidly changing environment.

Many of our clients have asked me what they can do to be prepared in case the worst happens: an arrest by Immigration and Customs Enforcement (ICE). There are a few things I would like you to know.

First, it is a good idea to have a Power of Attorney prepared which will give someone you trust completely the power to manage your finances, property, and belongings if you are detained or out of the country. The Power of Attorney document will enable the person you select to make transactions and decisions as if he or she were you. Even more importantly, if you have children you should have documents prepared that will enable a trusted person to enroll your children in school, give consent to medical procedures, and travel with them.

If you are worried about how your affairs will be handled or who will care for your children, ask your attorney if he or she can prepare these documents for you.

I also urge you to prepare an emergency file containing all contact phone numbers for family, child caregivers, and the immigration attorney of your choice, medical information for yourself and your children, and absolutely every immigration-related document you have ever possessed.

Under the Department of Homeland's Security most recent memos, the power of expedite removal is being expanded, which means that an undocumented person can be immediately removed from the United States without even seeing a judge if the person is unable to prove having lived in the United States for at least two years. For this reason, it is imperative that you carry documents showing you have lived here for at least two years with you. Place them in the glove compartment of your car or whatever container you carry with you on the street. These documents could be tax returns, bank statements, school transcripts, anything that shows you have been here for two years. If you have a petition or application pending, carry a copy of the receipt as well.

If officers come to your home, you do not have to let them enter unless they show you a warrant that specifically allows them to enter your home. You should ask them to pass the warrant under the door before you open it. You do not need to answer their questions but can instead ask that your attorney be present. You should not sign anything unless your attorney advises you to do so.

This is not a full list of the things to do or not to do. If you have any doubts about steps you plan to take, consult with me a licensed immigration attorney.

USCIS has announced new fee increases for most of its applications and petitions, shamefully exorbitant increases in some cases. The higher fees go into effect on December 23, 2016 as the agency's grim Christmas present to itself. If you are planning to apply for a benefit for which you properly qualify, file your case before then to avoid paying more. Always act under the advice of a competent, licensed attorney.

Some examples. . . 


Provisional Waivers are going from $670 to $1,015, an increase of over 50%.
Adjustment of Status with a Family Petition is going from $1,490 to $1,760
Fiance Petitions are going from $340 to $545
See all the increases at http://www.nafsa.org/Content.aspx?id=53836