Will Having Had DACA Make It Easier for Me to Get a Marriage-Based Green Card?

For people who've held DACA (Deferred Action for Childhood Arrivals), marriage to a U.S. citizen is an option worth considering to stay in the United States. It may be possible for DACA recipients to get a green card without leaving the U.S., or with only a brief trip to your home country.

The fate of DREAMers, or people who were brought into the U.S. as children and who now lack lawful status, remain unclear as of late 2017. Congress may or may not pass a law to help DREAMers in the future.

What is clear is that, in September 2017, the federal government began winding down the DACA (Deferred Action for Childhood Arrivals) program. Now is thus a good time to consider other immigration options to stay in the United States.

One alternative that many explore is, “What if I marry a U.S. citizen?” DACA itself does not create any special rules if you marry a U.S. citizen, but your DACA status may, for various technical reasons, create unanticipated benefits.

Basic Requirements for Getting a Marriage-Based Green Card

It's important to understand the basic requirements of getting lawful permanent resident status (also known as a “green card”) through marriage to a U.S. citizen.

First, of course, you must be lawfully and truthfully married to a U.S. citizen. U.S. immigration authorities will ask you to prove that your marriage is truthful, no matter your immigration status or background.

Second, you must be eligible to get a green card in the United States (known as “adjustment of status”) or you must return to your home country to get an immigrant visa (a process known as “consular processing”). You are generally ineligible to adjust status if you entered the United States unlawfully, and consular processing is risky because leaving the United States can strand you for years or even indefinitely outside of the United States.

Additionally, you are ineligible to adjust status or to consular process if you are inadmissible. Criminal convictions are a major reason people are inadmissible, but being in the United States without permission for longer periods of time can also make you inadmissible.

DACA will not help you prove that your marriage is truthful or help you avoid the negative consequences of criminal convictions. But DACA might help you show a lawful entry or help you avoid the negative consequences of being in the United States without permission.

Did You Enter the U.S. With DACA Travel Authorization? That May Help You Adjust Status

To get a green card while you are in the United States (that is, to “adjust” status), you must have entered lawfully. You may qualify for an exception if you were included in an immigration application that was filed before the end of April 2001. There are also exceptions in special cases, for instance, if you were the victim of a crime and helped police investigate, if you were granted asylum, or in other similarly compelling cases. DACA, unfortunately, is not an exception. But DACA might help in another way.

During most of the program, DACA allowed people the option of applying for travel authorization ("advance parole"). If you had DACA, if you received travel authorization, and if you left the United States and returned on that travel authorization, you now have a lawful entry.

If you otherwise qualify, you can then use the adjustment of status procedure to apply for a green card in the U.S., through marriage to a U.S. citizen.

Note that as of September 2017, travel authorization under DACA is no longer an option, so absolutely do not attempt to leave the United States even if you still have DACA.

If You Received DACA Before or Just After Turning 18, That Might Help You Get an Immigrant Visa

Even if you never traveled outside the U.S., you may still benefit from the DACA program when applying for a marriage-based green card. If you did not enter the U.S. lawfully, and none of the lawful entry exceptions apply to you, you will have to return to your home country to get an immigrant visa (“consular processing”). But leaving the United States can create a huge problem for many individuals because of something called unlawful presence.

U.S. immigration rules indicate that every day you are not authorized to be in the United States counts as a day of “unlawful presence.” If you collect 180 days of unlawful presence or more, you are barred from returning to the United States for three years after you leave. If you collect one year or more of unlawful presence, you cannot return for ten years after leaving. It’s a harsh rule, and it means that many people simply never leave the United States, and therefore never attend the visa interview that could finalize their approval for a green card.

The good news it that, any time you had DACA does not count as “unlawful presence” for the three-year and ten-year bars described above. The other good news is that, any time during which you were in the U.S. under the age of 18 also does not count as “unlawful presence” for the three-year and ten-year bars. This means that if you entered the U.S. as a child, and then received DACA before you turned 18, you may have few or even zero days of unlawful presence.

So, if you have or had DACA, try to determine how many day of unlawful presence (if any) you have collected in total. It may be less than 180, in which case, “consular processing” may be a good option for you. You can start the process of applying for a green card in the U.S., and then return to your home country for a short stay (typically around two weeks) to get an immigrant visa.

You should consult an immigration attorney before leaving, of course, to make sure that your conclusions and calculations are correct.

Beware the Permanent Bar: DACA May Not Help If You Entered the U.S. Unlawfully More Than Once

Even though minors do not collect unlawful presence for the purposes of the three-year and ten-year bars, minors do collect unlawful presence for purposes of the so-called “permanent bar.”

The permanent bar says you cannot enter the United States ever again if you collected one year of unlawful presence (or if you were previously kicked out of the United States) and then entered or attempted to enter the United States without permission.

The vast majority of people with DACA have collected one year of unlawful presence for the purposes of the permanent bar.

The eligibility rules for DACA required that you were out of status on the day the program was announced, that you were in the U.S. for five years before that, and that you entered the U.S. before the age of 16. Taken together, these rules make it virtually impossible to have avoided unlawful presence for the purposes of the permanent bar.

The good news is that the permanent bar applies only if you entered (or tried to enter) the United States more than once. If you entered one time and have not left since (voluntarily or after being kicked out), the permanent bar should not apply to you. However, if you entered (or tried to enter) the U.S. more than one time, and you have DACA, the permanent bar likely applies to you.

Consult an attorney for a full personal analysis, particularly if you're not sure whether the permanent bar applies to you.

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