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.
One of the most common questions an immigration attorney faces is why an applicant needs an attorney in the first place. Usually this is followed by some variation of, "It's just filling out forms, isn't it?"
Before one can even decide how to fill out the forms, an analysis must be made of an applicant's eligibility and of risk factors. Applying for something one doesn't qualify for can be the fastest way to get deported. Representing oneself as qualifying for a benefit that one doesn't qualify for can lead to a charge of fraud and possibly a permanent bar to immigrating. Immigration law is as bizarre as it is complex and ever-changing. The factors that determine eligibility or that can cause a problem often seem completely innocent in themselves, and a non-professional would never think twice about them. The year you were born, the year you entered the U.S., the number of times you entered, the way you entered, what was said at entry, the timing between entry and marriage, actions prior to entry, the country of origin, the state of current residence, previous applications filed by or for one's parents -- all these are things that can make a tremendous difference in how and whether a green card will be granted.
Last month alone, we met a woman whose friend had tried to help her file following the steps that had worked for her. As a result, the case was scheduled for a domestic interview when she was required to interview for abroad, and when she showed up to the interview in Los Angeles she was arrested. We also met a man who applied for citizenship not realizing that by divorcing his wife and remarrying a friend from his home country so soon after gaining residency he was flagging himself for a fraud investigation and ended up in removal proceedings instead of becoming a citizen. Another young man who has lived here since the age of 2 filed papers without realizing that his parents had made multiple misrepresentations on papers they filed for him during his childhood, all of which were charged against him when he tried to file for himself.
With the stakes so high, it is imperative that an applicant's entire history and profile be analyzed before determining a course of action.
Even once the proper process has been selected, the forms involve far more than lists of addresses and jobs. They contain many questions that require legal interpretation, some of which have ambiguous meanings and are the subject of ongoing lawsuits. Do you know if using the Driver's License of a U.S. citizen to buy alcohol count as a false claim to citizenship? Do you know if presentation of a counterfeit visitor's visa counts as an entry with inspection? When did your periods of unlawful presence as defined in INA 212(a)(9)(B) begin and end, and should your answer be affected by the amended decision in Carrillo de Palacios v. Holder? An answer based on "common sense" may be completely wrong and result in a finding of inadmissibility for fraud or a delay of years.
Even before our current climate of anti-immigration, USCIS was at best a convoluted and over-burdened bureaucracy with its own quirks and unstated rules. Only someone who routinely files dozens of applications in a month will know these unstated rules, the practices that while correct will be misunderstood, and the ways to make sure routinely missed factors are properly noticed. A simple oversight usually costs several months in delays. USCIS usually only gives one chance to respond to a request and then denies the case, requiring repayment of the whole filing fee -- and under new guidance announced in July 2018 --- often leading to an automatic commencement of removal proceedings.
Finally, USCIS is not the agency it was a few years ago. No longer a customer-service based organization (they even took those words out of their mission statement recently) they are now operating under an imperative to impede and even reverse the granting of immigration benefits, looking for any ground on which to deny a case and even routinely claiming that a document is missing when it is not. Many feel this is a deliberate tactic to frustrate and discourage potential applicants. Considering all that is at stake for the immigrant, it is nothing short of madness to walk into an encounter with a government official trusting that he has your best interests at heart and will treat you in a fair and legally proper manner. The government has nearly inexhaustible resources to investigate you and throw up legal challenges to the benefit you are seeking. They have thousands of attorneys working for them. You need one too.
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 service member 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.