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 might 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.

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The pathway for DREAMers, or people who were brought into the U.S. as children without lawful immigration status, has been bumpy for years. Although President Obama created the DACA program as a stopgap pending Congressional action, no such action ever took place. And the DACA program itself contained only temporary benefits, with no path to U.S. lawful permanent residence, much less citizenship (which would be beyond the president's powers to implement by executive order).

Trump made multiple efforts to cancel DACA, though the federal courts kept alive the possibility of renewals. President Joe Biden, on his first day in office, ordered the Department of Homeland Security (DHS) to reinstate DACA, and asked Congress to create a roadmap to citizenship for DREAMers through legislative immigration reform. But none of that has gone forward. Thus it's worth considering other, possibly faster immigration options for staying in the United States.

One alternative that many DACA holders explore is the possibility of marrying a U.S. citizen. DACA itself does not create any special rules if you marry a U.S. citizen, but your DACA status might, for various technical reasons, create unanticipated benefits.

Basic Requirements for Getting a Marriage-Based Green Card

Let's start with the basic requirements for obtaining lawful permanent resident status (also known as a "green card") through marriage to a U.S. citizen.

First, of course, the foreign national must be lawfully and truthfully married to a U.S. citizen. U.S. immigration authorities will ask the couple to prove that the marriage is bona fide (real) not a fraud or sham.

Second, the foreign national must be eligible to get a green card in the United States (known as "adjustment of status") or alternatively, must return to their home country to get an immigrant visa there (a process known as "consular processing"). You are ordinarily ineligible to adjust status if you entered the United States unlawfully; but consular processing is risky because leaving the United States could strand you for years or even indefinitely outside of the United States, as a penalty for your past unlawful presence.

Additionally, you are ineligible to adjust status or to consular process if you are inadmissible. Criminal convictions are a major reason people become inadmissible, but again, 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 for purposes of adjusting status, thus helping you avoid the negative consequences of being in the United States without permission, as described next.

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

To get a green card while in the United States (that is, to "adjust" your status), you must have entered the country lawfully, with permission from an official of Customs and Border Protection (CBP). You might 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.

DACA allows its holders the option of applying for travel authorization ("advance parole"). If you have had DACA, received travel authorization, and left the United States and returned on that travel authorization, you would now have a lawful entry. If you otherwise qualify to adjust status, you could then use this procedure to apply for a green card in the U.S., through your marriage to a U.S. citizen.

This is a tricky area of the law, and subject to change. You should absolutely not attempt to apply for DACA advance parole or leave the United States with DACA advance parole without speaking to an attorney.

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 might 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"). As mentioned, 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 a person is 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. 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 might 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've collected in total. It could be less than 180, in which case, "consular processing" might 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.

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

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

Although minors (people under 18) 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 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.

Getting Legal Help

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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You should not send any sensitive or confidential information through this site. Any information sent through this site does not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent through this site could be intercepted or read by third parties.

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