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Although the Deferred Action for Childhood Arrivals (DACA) program has been around since 2012, many still do not know how the program relates to other immigration processes such as legal permanent residency. Can DACA help fix a person’s immigration status or is it just a way of getting work permission?
Depending on your immigration history, obtaining DACA can potentially do both. As with many immigration processes, the real answer depends on the method and timing of a person’s entry into the U.S. For most immigration cases, entry to the U.S. without a visa will typically create additional problems when a change in legal status is needed. This is because immigration law penalizes those who enter the U.S. with no visa or with some other type of governmental permission such as advance parole. If you entered with permission and then obtained DACA, you will not have any issues obtaining a green card based on this status.
If, however, you entered the U.S. without permission, you will face an uphill battle when you decide to obtain a green card. For those who were fortunate enough to enter the U.S. while they were minors (under the age of 18), the law technically does not punish them until they become an adult. Once this happens, they will start accumulating what is called “unlawful presence” which leads to problems after accumulating three months or more of this presence.
Besides work permits and freedom from deportation, DACA provides another major benefit to those who obtained the protection while they were under the age of 18. DACA places these individuals in a “safe haven” that protects them from accumulating unlawful presence. So, obtaining DACA under the age of 18 offers protection regardless of whether the person entered the U.S. with or without a visa. Since the individual cannot be punished, they will be able to get their green card without having to go through the expensive, complicated and slow waiver process.
For DACA program recipients who do not have the benefit of the “safe haven” protection, there are other options that can be used to help fix their status. For example, some DACA recipients with a history of unlawful entry into the U.S. can avoid having to obtain a waiver or even from being required to leave the U.S. for their green card interview. This can be done through the recently re-opened advance parole process that was closed by President Trump in 2018 as part of the attempt to eliminate the DACA program.
Advance parole is used to permit those without full legal rights in the U.S. (like DACA recipients) to leave the country for a very specific purpose (work, school or humanitarian reasons) and then legally reenter the U.S. This legal reentry can then be used to allow an applicant with a pending green card request to remain in the U.S. for their interview and it eliminates the need for them to obtain a waiver.
It should be well understood that this is a very technical area of immigration law and requests should only be attempted with the assistance of an experienced immigration attorney in order to avoid great risk if not done right. If you have questions about whether advance parole will help your case, please contact our office to schedule a consultation. You can do this by calling our office at 616-805-3435 or by using the following link to schedule an appointment online: https://marvinlawoffice.com/schedule-a-consultation/