DACA recipients can adjust their status if…

Posted on April 5, 2017   // 0 Comments  

DACA - RecipientsWhen an alien is in the United States and marries a U.S. citizen or has a U.S. citizen child who turns 21 or a parent who becomes a U.S. citizen before the alien child turns 21, he/she can adjust status and obtain a green card. For this to happen, though, there is one essential requirement: The alien should have entered the U.S. “with inspection,” i.e., as holder of a tourist or student J1 visa (not subject to 212 [e]), to mention a few.

An alien who enters by “crossing the borders” or who enters “without permission” (generally referred to as “entry without inspection” or ‘EWI’) is specifically excluded from adjusting his/her status while in the U.S.  This is to make it difficult for those who come to the U.S. without inspection and marry American citizens to get green cards or give birth to U.S.-born children and later be petitioned by the U.S. citizen child for a green card.  A caricature, satirical image of pregnant women crossing the border comes to mind, and this elicits a cringe-like reaction from a lot of people, as rightly so.

There were children (ages from birth to below 16), too, of these aliens entering without inspection (EWI). The children were brought in when they were too young to know and recognize that what they were doing was against the law. They came to live in the U.S., studied in U.S. schools, learned American values and were integrated into the American society.

These children consist a huge chunk of DACA recipients. DACA, otherwise known as “Deferred Action for Childhood Arrivals”, is a policy/program of the U.S. Department of Homeland Security (DHS) that provides undocumented children who came into this country before they were 16 years old, studied and or finished in U.S. school system, have continuously lived in the U.S. since their entry, were less than 30 years old on June 12, 2012, have no criminal record, among others, and have work permits in order for them to be productive members of society.

The matter of their illegal status, in the meantime, is relegated to the sideline or “deferred” as they work and become productive members of the American society.  To date, there are approximately 665,000 DACA recipients. They have not been provided immigration visas that would have led them to a path to citizenship. They are just given a privilege to stay here as long as the administration wants them be here and work with proper authorization.

Noteworthy about this program, however, is the privilege to be able to travel abroad for some business, work and study or for personal reasons.  A subsequent application for a travel permit will have to be submitted with the U.S. Department of Homeland Security. This would give them the permission to temporarily travel abroad.  If granted, the DACA recipient obtains an “advance parole” to go out of the United States and travel to another country and to be admitted back to the U.S.

Without the “advance parole” documentation, however, travel to other countries will not be valid and entry back to the U.S. will never be allowed. The rules and guidelines pertaining to the grant of the “advance parole” to DACA recipients are stringent and its approval is limited.  But for those who are granted the privilege to travel out of the country and back, they are reaping the reward of such privilege for their courage to go out of the U.S. and return.

There have been stories about U.S. port-of-entry officers denying entry to those who only have “advance parole” documents in their possession if the officers find any other suspicious and factual grounds to exclude the alien from entering the U.S.

These DACA recipients can actually adjust their status and obtain green cards when there is an available immediate relative petition such as a U.S. citizen spouse who marries and petitions for her or him.

By obtaining the “advance parole” document and leaving the U.S. and back, these DACA recipients will have complied with the essential element for adjustment of status, i.e. that she/he has entered “with inspection” and, therefore, qualified to adjust status.  This was not primary intention when the government allowed DACA recipients to travel temporarily, but it is the best that could ever happen to the undocumented whose visa processing would have been too tedious and long if she even qualifies for a visa.

It may be important to note further that those DACA recipients who came into this country “with inspection” (with tourist, work and other non-immigrant visas) will continue to be able to adjust their status when the right petition of an immediate relative is filed.


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Maria Rita Reyes-Stuby is a licensed attorney in Michigan. She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states... Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at stubylaw@aol.com for any questions on this article.