If I leave and return to the U.S. with DACA, can I adjust status?
The strategy of leaving and entering the U.S. with Advance Parole has worked for adjustment seekers in the past, but is risky and may not work for everyoneP
I came to the U.S. with my parents from Mexico when I was three years old. Now I am married to a U.S. citizen. I tried to apply for a green card two years ago, but I learned it wasn’t possible to do that from inside the U.S., because of how I entered the country illegally. I got DACA instead. But now someone told me that if I travel to Mexico and then come back legally with DACA, even if it’s just the next day, then I can apply for the green card from inside the U.S. Is it true?
Possibly yes, but be cautious. Recipients of Deferred Action for Childhood Arrivals (DACA) who originally entered the U.S. illegally may be allowed to reenter the country legally by obtaining a travel document called Advance Parole. Reentry with an Advance Parole document may then allow them to satisfy the legal entry requirement for adjustment of status (making them eligible to apply for the green card from within the United States upon return).
However, this has been possible only because of a decision by the Board of Immigration Appeals allowing adjustment of status in a case where a person came back to the U.S. on a different type of Advance Parole. The Department of Homeland Security (DHS, the agency that controls immigration) effectively has a policy that allows adjustment after reentry with DACA Advance Parole as well, but there is always the possibility that in the future DHS will decide to change or reinterpret DACA in a way that does not allow its recipients to adjust status.
Moreover, traveling with DACA solely for the purpose of reentering the U.S. to adjust status (if that is your intent) is actually not allowed. Advance Parole is available to DACA recipients who intend to travel for very limited (humanitarian, employment or educational) purposes. It is not always clear what might qualify as one of these purposes, but it is very clear that the goal of traveling solely for the purpose of satisfying the legal entry requirement for adjustment of status is not one of them.
This is something to keep in mind, because traveling on Advance Parole can be difficult and risky — difficult because U.S. Citizenship and Immigration Services or USCIS (a branch of DHS) could decide to deny your request for Advance Parole, and risky because, even if USCIS grants you Advance Parole, U.S. Customs and Border Protection or CBP (another branch of DHS) could still decide to keep you out when you try to come back to the United States. DHS has indicated, however, that CBP should honor Advance Parole granted by USCIS.
(If CBP decides to keep you out, then you will probably be removed to your home country of Mexico, after which you will be required to apply for a special permission before your green card application can be processed at a U.S. embassy or consulate.)
The difficulty and the risk will only increase as DHS begins to suspect that more and more DACA recipients are traveling solely for the purpose of bypassing the law that limits adjustment of status.
You should check with an attorney to find out the latest on this issue, and to evaluate the many risks of departure.