From DACA To Green Card
Author: Alena Shautsova
Pathways for DACA Recipients to Obtain a Green Card in the United States
For DACA (Deferred Action for Childhood Arrivals) recipients, obtaining a green card can be a complex but achievable process. As immigration lawyers, we understand that many Dreamers desire permanent residency, which provides more stability and security compared to temporary protection under DACA. This article outlines the main avenues through which a DACA recipient can potentially obtain a green card, including family-based petitions, employment-based petitions, and other special options.
Lawful Entry Requirement
Before delving into specific pathways, it’s important to address one fundamental requirement for many green card applications: lawful entry into the United States. Most DACA recipients arrived in the U.S. without inspection, meaning they crossed the border without going through a formal checkpoint. This undocumented entry presents a significant hurdle when applying for a green card through standard procedures, as the applicant must have been lawfully admitted into the U.S. or have obtained special permission like "Advance Parole" to leave and re-enter legally. Without lawful entry, alternative solutions must be explored.
Family-Based Green Card Through Marriage
One of the most common pathways for DACA recipients to obtain a green card is through marriage to a U.S. citizen or lawful permanent resident (green card holder). This route is particularly viable if the DACA recipient has already been granted Advance Parole and re-entered the U.S. legally.
- Marriage to a U.S. Citizen: When a DACA recipient marries a U.S. citizen, they can apply for an adjustment of status, provided they meet the lawful entry requirement. This process allows the applicant to apply for a green card without leaving the country. The spouse files Form I-130, Petition for Alien Relative, and the DACA recipient can file Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently.
- If the DACA recipient did not enter the U.S. lawfully, they may need to leave the U.S. to apply for a green card through consular processing. However, leaving the country can trigger a bar to re-entry, depending on how long the recipient had been unlawfully present in the U.S. In such cases, the recipient may need to apply for a waiver of inadmissibility (Form I-601A) to overcome this issue. Luckily, a DACA beneficiary may qualify for an Advance parole which allows its holder to temporarily travel abroad and safely return back. Once back in the US, a DACA holder can file for green card!
- Marriage to a Green Card Holder: For DACA recipients married to green card holders, the process is similar, but it often takes longer due to visa backlogs. In these cases, the U.S. spouse files an I-130 petition, but the DACA recipient must wait for a visa to become available before they can adjust their status. In many instances, DACA recipients will have to apply for a visa overseas. To ensure that they will be able to obtain that visa and be able to return back to the US, they should work with an experience Immigration attorney.
Employment-Based Green Cards
Another route available to some DACA recipients is obtaining a green card through employment-based immigration. This option requires sponsorship from a U.S. employer and is often available to highly skilled workers in certain industries.
- Adjustment of Status Through H-1B Visa: Some DACA recipients may qualify for an H-1B work visa if they hold a bachelor's degree or higher and have a job offer from a U.S. employer. Once in H-1B status, they may be eligible to apply for a green card through employment-based sponsorship. To obtain H1 visa, a DACA beneficiary would have to apply for it overseas. A waiver may be necessary to obtain H1B visa depending on whether or not the beneficiary accumulated more than 180 days of unlawful presence time prior to being granted DACA status.
- PERM Labor Certification: Employment-based green cards often require labor certification through the PERM process, where the employer demonstrates that no qualified U.S. workers are available for the position. Once the labor certification is approved, the employer can file a Form I-140, Immigrant Petition for Alien Worker, on behalf of the DACA recipient. The beneficiary again will have to use a visa route to benefit from this opportunity.
Advance Parole and Travel
One of the critical tools for overcoming the lawful entry issue for DACA recipients is "Advance Parole," which allows DACA recipients to travel abroad and re-enter the U.S. legally. After obtaining Advance Parole, a DACA recipient can leave the U.S. for an approved purpose—such as visiting family, attending a work conference, or pursuing educational opportunities—and return lawfully. This legal re-entry satisfies the lawful entry requirement for many green card applications, including those based on family or employment petitions.
Conclusion
While the pathway to a green card for DACA recipients can be complicated, it is certainly attainable through several different legal routes. Whether through marriage, employment, or other family or humanitarian petitions, understanding the lawful entry requirement and how to navigate it is essential to successfully obtaining lawful permanent residency. With the right legal strategy and support, many DACA recipients can eventually secure the permanent status they seek in the United States. If you need help with DACA to green card process, call us 917 885 2261.