Daca Recipients' Travel Plans: Wedding Abroad

DACA, or Deferred Action for Childhood Arrivals, recipients who want to leave the U.S. to visit family or attend a wedding abroad face the risk of being refused entry to the U.S. upon their return. This is because DACA is not an immigration status but an agreement from the U.S. government not to deport the person. However, there is a way for DACA recipients to travel and return called Advance Parole.

DACA recipients can apply for Advance Parole to leave the country for a wedding

DACA, or Deferred Action for Childhood Arrivals, is a form of prosecutorial discretion that does not confer lawful permanent resident status or provide a direct path to permanent residence (a green card). However, certain individuals with DACA can apply for Advance Parole to travel outside the country.

Advance Parole is a possible way for DACA recipients to travel and return to the U.S. and counts as a lawful entry. It is granted by U.S. Citizenship and Immigration Services (USCIS) for urgent humanitarian reasons, educational purposes, or employment purposes. Humanitarian reasons include obtaining medical treatment, attending funeral services for a family member, or visiting an ailing relative. Educational purposes include semester abroad programs and academic research. Employment purposes include overseas assignments, interviews, conferences, training, or meetings with clients.

To apply for Advance Parole, DACA recipients will need to fill out Form I-131 and provide supporting documents, photos, and a fee. They may also need to obtain documentation of the facts supporting their request, such as letters or invitations from sponsors or employers. It is recommended that DACA recipients hire an experienced immigration attorney to help with their application, given the complexity of the law and the paperwork.

It's important to note that Advance Parole is not guaranteed and that travel for vacation is not a valid basis for Advance Parole. Additionally, DACA recipients who leave the U.S. without Advance Parole may face difficulties returning and may no longer meet the guidelines to qualify for DACA benefits.

This is a discretionary approval, not automatic

Travelling outside the US with DACA status

Advance Parole

DACA recipients can apply for Advance Parole, which allows them to leave and re-enter the US for urgent humanitarian, educational, or work-related reasons. This is not automatically granted and requires a fee, supporting documents, and completion of Form I-131.

Discretionary approval

Advance Parole is granted on a case-by-case basis, and DACA recipients must present convincing facts to support their request. USCIS will not grant Advance Parole for a vacation.

Risks

If a DACA recipient leaves the US without Advance Parole, they will likely face difficulties re-entering the country and will no longer be eligible for DACA benefits.

Legal advice

Given the complexity of US immigration law, DACA recipients should consult an immigration attorney before attempting to leave the country.

Advance Parole is typically granted for humanitarian, educational, or work-related reasons

Advance Parole is a possible way for DACA recipients to travel and return to the U.S. However, it is not a given right and depends on showing specific or urgent reasons. Advance Parole is typically granted for humanitarian, educational, or work-related reasons.

Humanitarian reasons include obtaining medical treatment, attending funeral services for a family member, or visiting an ailing relative. Educational reasons include semester abroad programs or academic research. Work-related reasons include overseas assignments, interviews, conferences, training, or meetings with clients.

It is important to note that even if Advance Parole is granted, it is not an absolute guarantee that the individual will be allowed to return to the United States. Additionally, DACA recipients should not attempt to leave the U.S. without first speaking to an immigration attorney, as there are complex legal considerations and risks involved.

DACA recipients married to US citizens can apply for a marriage-based green card

DACA, or Deferred Action for Childhood Arrivals, is a program that provides temporary protection from deportation and work permits for undocumented immigrants who were brought to the US as children. While DACA does not offer a direct path to permanent residence, certain individuals with DACA can apply for permanent residence in the US.

If you are a DACA recipient and marry a US citizen, you may be eligible for a marriage-based green card. To do so, you must meet the main eligibility requirements for a marriage-based green card. This means that your marriage must be legal and made in good faith, rather than for immigration fraud. You must also be able to adjust your status to a green card while staying in the US, which is only available to foreign nationals who have lawfully entered the country.

Lawful Entry

One of the critical requirements for adjusting status to a permanent resident is having a lawful entry into the US. This means that you must have been admitted or paroled into the country, typically by presenting valid documentation and undergoing inspection by a US immigration officer. If you entered the US with a valid visa that has since expired, you still have a lawful entry as long as you have not departed the country since then.

Advance Parole

The DACA program allows DACA recipients to obtain advance parole, which is permission to travel outside the US and return based on their travel authorization. This counts as a lawful entry, and if you have married a US citizen, you can use this process to obtain a green card and lawful permanent resident status. However, it is important to consult an immigration attorney before leaving the US, as this area of law is detailed and subject to change.

Consular Processing

If you are not eligible for status adjustment, you may be able to obtain a green card through consular processing in your home country. However, be aware of the re-entry bars that apply if you have stayed unlawfully in the US for a certain period. A three-year bar applies if you have stayed unlawfully for 180 days or more, and a 10-year bar applies if you have stayed unlawfully for one year or more. DACA status does not count as unlawful presence, nor does time spent in the US as a minor.

Permanent Bars

Foreign nationals will face a permanent bar from entering the US if they were unlawfully present in the country for at least a year and then unlawfully entered or attempted to enter again after being removed. If you have DACA protection, you likely have accumulated at least a year of unlawful presence. However, if you have not left the US since the unlawful stay that made you eligible for DACA, the permanent bar likely does not apply to you.

Application Process

If you are eligible for a marriage-based green card, you will need to file an adjustment of status package with USCIS. This typically includes the following forms:

• I-485, Application to Register Permanent Residence or Adjust Status
• I-130, Petition for Alien Relative
• I-130A, Supplemental Information for Spouse Beneficiary
• I-864, Affidavit of Support
• I-693, Report of Medical Examination and Vaccination Record
• I-765, Application for Employment Authorization (optional)
• I-131, Application for Travel Document (optional)

Benefits of Marriage-Based Green Card

There are several benefits to obtaining a marriage-based green card for DACA recipients. These include the ability to legally remain in the US, obtain employment authorization, access public benefits such as Social Security and Medicare, pursue educational opportunities, and eventually apply for US citizenship. Additionally, DACA recipients with permanent resident status can more easily bring family members to the US.

DACA status may affect the process of obtaining a marriage-based green card

If you are a DACA recipient and are married to a U.S. citizen or green card holder, you may be eligible for a marriage-based green card. However, there are several factors to consider, and the process can be complex and challenging. Here are some key points to understand how your DACA status may affect the process of obtaining a marriage-based green card:

• Eligibility Requirements: To obtain a marriage-based green card, you must meet the main eligibility requirements, including proving that your marriage is legal and made in good faith. DACA status does not automatically prove good faith, and you must still meet all the standard requirements.
• Adjustment of Status: To adjust your status to a green card, you must do so while remaining in the U.S., which is only available to foreign nationals who have lawfully entered the country. DACA recipients who entered the U.S. illegally may face additional challenges and requirements.
• Consular Processing: If you are not eligible for adjustment of status, you may need to use consular processing, which involves applying for a green card outside the U.S. at a U.S. embassy or consulate. However, leaving the U.S. and attempting to re-enter may trigger re-entry bars if you have accrued unlawful presence days.
• Re-entry Bars: DACA recipients who have accrued more than 180 days of unlawful presence and then leave the U.S. may be subject to a 3-year re-entry bar. If you have accrued one year or more of unlawful presence, you may face a 10-year re-entry bar. DACA status does not count as unlawful presence if obtained before turning 18.
• Permanent Bars: Foreign nationals who have accrued at least one year of unlawful presence and then unlawfully enter or attempt to enter the U.S. again may be permanently barred from re-entering. DACA recipients who have left and returned to the U.S. multiple times may be subject to this permanent bar.
• Travel Authorization (Advance Parole): The DACA program allows recipients to obtain travel authorization to leave and re-enter the U.S. lawfully. This counts as a lawful entry, and if you meet the other requirements for adjustment of status, you can obtain a green card through this process.
• I-601A Provisional Waiver: If you are subject to a re-entry bar, you may be able to obtain an I-601A provisional waiver by proving that your U.S. citizen spouse would suffer "extreme hardship" if you are not allowed to live together in the U.S. This process should be navigated with the help of an experienced immigration attorney.
• Criminal Convictions and Inadmissibility: DACA status does not negate criminal convictions or other grounds of inadmissibility. Even as a DACA recipient with a marriage-based green card, you may encounter obstacles if you have committed certain crimes or violated immigration laws.

It is important to note that the information provided here may not cover all possible scenarios, and the laws and procedures related to DACA and marriage-based green cards can be complex and subject to change. Therefore, it is highly recommended to consult with an experienced immigration attorney before making any decisions or initiating any processes related to your immigration status.

Frequently asked questions