Can DACA recipients get green card based on marriage to U.S. citizen?
In 2012, the Obama Administration put into effect a way for undocumented individuals who came to the U.S. in their childhood to obtain legal work permit and be deferred from deportation. This is what's commonly known as DACA, Deferred Action for Childhood Arrivals. Not everyone qualifies for DACA.
For example, among other requirements, the person must have entered the U.S. before his/her 16th birthday, must have continuously resided in the U.S. since 2007 to 2012, must not have a significant misdemeanor. A comprehensive explanation of DACA eligibility can be found on the USCIS website.
Through this program, almost a million people have benefited by receiving legal work permits. Additional benefit for DACA recipients is the fact that they can apply for travel document and be allowed to travel overseas. And the benefit doesn't end there. The best part about DACA is that, once you travel with a valid travel document to a different country and come back to the U.S., you will be considered paroled in. Generally, being paroled in means that you have now entered the U.S. with inspection, i.e., you entered the U.S. legally.
What's the big deal about entering the U.S. legally, you might ask. This is a huge deal! When a person enters the U.S. illegally, i.e., without inspection such as secretly crossing the border, the person would not be eligible to file for green card in the U.S. even if he/she marries a U.S. citizen. But if the person enters the U.S. legally, i.e., with inspection such as being paroled in, then even if that person does not have legal status, the fact that the person entered the U.S. legally allows that person to file for green card in the U.S. once he/she marries a U.S. citizen. That is a huge difference!
For those without legal entry, there is a way to file for immigration based on marriage to a U.S. citizen but there are additional steps and most importantly, the process cannot be completed while in the U.S. The last step of the immigration process for those individuals who entered the U.S. without inspection requires them to leave the U.S. and come back with an immigrant visa. For these individuals, the process takes longer and much more costly than those who entered the U.S. legally.
Among other documents, an important document to submit for marriage-based green card cases for DACA recipients is proof of legal entry. The proof is the stamp on the passport and the arrival/departure document, I-94, that they receive when they come back to the U.S. after a temporary overseas travel. For a complete list of documents you need to file marriage-based green card case, please see our I-130 Checklist and I-485 Checklist.
With Trump in the White House, our hope to legalize Dreamers (children who came to the U.S. when they were young and grew up in the U.S.) have been delayed. But let's not lose hope. We may feel hard pressed on every side, but we are not crushed. We may feel perplexed but we are not in despair. We are here to stay and fight for our children and our nation. Your voice matters. Speak up and stand for a cause.