With Deferred Action for Childhood Arrivals (DACA) becoming more active under the new administration, more and more clients are asking questions about the eligibility requirements for the existing DACA program as well as how DACA relates to the residency process, travel requests, and how things will change with the proposed dream act that has still not passed through the Senate. Here is what you need to know at this point in time.
The DACA program was created to allow certain school-aged individuals to live and work in the US without the fear of being deported after being brought into the country without any visa or after the expiration of their original permitted stay in the US with an entry visa. This protection is a significant benefit for all applicants who qualify for the program, but it is not always so straight-forward or easy to qualify. This is especially true as the program is aging and applicants are finding it difficult to obtain the right documents to prove they meet the qualifications. For example, applicants who are now in their late 20s and who entered at 1 or 2 years old do not have records from 14 years ago. The answer to this problem is to get creative in where you can locate these proofs. School records, medical records and church records are good options, but do not always have what is needed.
What about those who have obtained DACA protection and eventually want to become a legal resident? Many people forget that DACA is not a path to a green card and the protection does not always solve all problems with a person’s immigration status. The biggest problem applicants have is what is called accumulating “unlawful presence.” This happens to applicants who did not qualify or apply for the program until they were older than 18. Although they were brought to the US as children, if applicants became adults before they received DACA, they will have an additional number of problems since the government tracks the number of days someone lives in the US “out of status”. This typically only applies to DACA recipients who want to get a green card since a DACA recipient who entered the US without a visa is always required to go back to their home country for their interview. This exit for the interview triggers the 10-year bar.
When a person who entered the US without a visa leaves the US for their green card interview, they now have to obtain a waiver to be able to get rid of the 10-year bar that is automatically imposed on their immigration file. There is a process to do this, but it is costly and there is always the risk that it will not be approved and the person will not be able to become a legal resident.
One method used by immigration attorneys to get around this problem is a process that is also being used by TPS holders called advance parole. Advance parole is essentially permission for an immigrant to leave and return to the US when they do not otherwise have the legal right to do so. Though this process was closed for several years under the Trump administration, it was re-opened in late 2020 along with the normal DACA process. Although this process was not intended to fix a person’s unlawful presence issues, immigration attorneys have been making the argument that it technically corrects their deficiencies and should allow someone with an advance parole approval to exit and re-enter the country and re-set their non-immigrant status. This is only a possible solution to the problem of unlawful presence and is far from reliable, so it is highly recommended that anyone attempting to obtain a green card with these problems in their history speak with an experienced immigration attorney first.
If you have any questions about any of the above updates or need more information about your ability to qualify for an immigration process, please contact our office for a contact-free consultation at 616-805-3435.