Can having DACA lead to permanent residence?

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.

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