For DACA (Deferred Action for Childhood Arrivals) recipients, navigating the immigration system and building a life in the United States can often be challenging since there currently is no established path to citizenship or even applying for a green card on the basis of DACA alone. While it is still up in the air whether the DREAM Act will ever come to fruition, DACA recipients are eligible for marriage green cards if they marry a U.S. citizen/ lawful permanent resident. That does not mean, however, that you will automatically be granted a green card if you get married to a citizen. Depending on whether you entered the United States lawfully or unlawfully, the legitimacy of the relationship, financial considerations and many other factors will effect how USCIS evaluates your case and the likelihood of being approved for the marriage green card.
Can DACA recipients get married? Yes, but there are many factors that will determine your chances of being approved for a marriage green card. Assuming the relationship is bonafide, it is worth trying to obtain a green card because it will protect you from being deported and you will be able to acquire long term work authorization without needing to continually renew a permit. Also, if you are approved for a green card then it is one step closer to becoming a U.S. citizen.
What is DACA?
DACA is a form of deferred action that was established in 2012 and the basically allows certain individuals who were brought to the United States as children to receive temporary protection from deportation (in renewable two-year increments) as well as the ability to apply for employment authorization (work permit). There are a number of requirements to be eligible under DACA including not having any felonies or misdemeanors on your record, having come to the U.S. prior to turning 16 years old, lived here continuously since June 15, 2007 and others which we will detail further on.
Obtaining a Marriage Green Card
Depending on whether you entered the United States lawfully or unlawfully will be heavily weighed when being evaluated for a marriage green card and even the application process itself. If you entered the country lawfully then the process is easier since you can apply for the marriage green card from within the U.S.
Satisfying the Legal Entry Requirement
There are typically two ways in which someone can come to the U.S. lawfully—”with inspection” or through the Visa Waiver Program. “With inspection” means you came to the U.S. with a valid immigrant visa and were inspected at a port of entry (airport, seaport, etc.) by a U.S. Customs and Border Protection or immigration officer. If you came through the Visa Waiver Program (allows citizens or nationals of participating countries to travel to the United States for tourism or business for 90 days or less without obtaining a visa) and overstayed your visa, then you can still be considered under lawful entry if you have not left the U.S. since you first entered it. If one of the aforementioned scenarios sounds like you then you can file for an adjustment of status on the path to obtaining a marriage green card. If, however, you came to the U.S. unlawfully (without being inspected by Customs and Border Patrol or without having a valid visa/waiver) then you would need to apply for the marriage green card from your home country and also satisfy the “legal entry” requirement. Individuals with Temporary Protected Status (TPS) who have entered the United Sates with advance parole are considered to have lawful entry.
Did you apply for DACA prior to age 18? If you did or within 180 days of turning 18 then the good news is that you can satisfy the legal entry requirement by applying for your marriage green card at a U.S. embassy or consulate in your home country through a process called consular processing. If all goes well, then your green card application will be approved and you will be able to re-enter the U.S. as a lawful permanent resident.
But what if you applied for DACA more than 180 days after turning 18? Unfortunately, your case is trickier if this describes your situation and you have not been granted travel permission on advance parole. Re-entry bars are set by the U.S. government on undocumented immigrants who have resided in the United States for 180 days or longer. A three-year ban is given to undocumented immigrants who have been in the U.S. 180-365 days without status and a ten-year ban is given to individuals with over one year of unlawful presence. There are ways to circumvent these very strict bans by filing certain waivers. Should you end up receiving a three or ten-year ban then you would have to stay out of the United States until the ban expires before being able to apply for a marriage green card.
Avoiding a Re-Entry Ban
If you are at risk of facing an entry ban then it is crucial that you seek the assistance of an experienced immigration attorney right away. Depending on your case, they may advise you to file a Provisional Unlawful Presence Waiver by submitting Form I-601A to USCIS. A skilled immigration lawyer can help you explain in your application how you will endure extreme hardship by not being able to re-enter the U.S. Processing time for the I-601A waiver can take anywhere from four to six months or longer due to COVID backlogs. If you came to the U.S. illegally more than one time then USCIS will most likely issue a permanent ban and the I-601A Provisional Waiver cannot be used in that case.
DACA Marrying U.S. Citizen vs Green Card Holder
Are you married to a green card holder? As a DACA recipient you can still obtain a marriage green card if you are married to a U.S. permanent resident through consular processing (applying from a U.S. Consulate or embassy in your home country) regardless of whether you came to the U.S. lawfully or unlawfully. Other factors may play a role in the decision to grant you a marriage green card including the time frame in which you applied for DACA, conduct while in the United States and so on. The overall processing time if you are the spouse of a green holder is much longer than if you were married to a U.S. citizen because you have to wait for a visa to be made available in the Visa Bulletin before your green card application can be processed. You can see the most recent Visa Bulletin here. Refer to the family-based green cards chart to get a better idea.
There are certain DACA recipients who are not eligible to receive green cards. Those include individuals found guilty of drug trafficking, murder, tax fraud, sexual abuse of a minor, etc.
How to Demonstrate a Bonafide Marriage
When you are applying for a marriage green card one of the most important things to do is establish a bonafide relationship/marriage. You should include copies of your wedding photos, the marriage certificate, your spouse’s U.S. birth certificate or green card, any joint bank accounts and divorce decrees from any previous marriages. This information should be included with Form I-130, Petition for Relative to USCIS. Additional information may be requested by USCIS but they will notify you with a Request for Evidence (RFE) if necessary.
Renewing DACA After Marriage
DACA status is not impacted by a marriage so you can renew your DACA even after you are married. In most cases it would make sense to apply for an adjustment of status if you had lawful entry into the United States and your spouse is a U.S. citizen.
To file an adjustment of status, you should file the following:
- Form 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-944, Declaration of Self-Sufficiency,
- I-693, Report of Medical Examination and Vaccination Record,
- I-765, Application for Employment Authorization (optional)
- I-131, Application for Travel Document (optional)
Additional forms and waivers may need to be filed depending on the specifics of your case. It is strongly advised to have a legal professional assist you with adjusting your immigration status. Even more so if you have ever committed a crime, immigration fraud, misrepresented yourself to immigration officials and left the United States and reentered without first getting immigration clearance or advance parole.
Frequently Asked Questions
Can I travel outside of the United States if I have DACA?
There is a way you can get permission to travel outside of the United States as a DACA recipient and that is through a process called advance parole. If USCIS approves your advance parole then you will be allowed to travel out of the country and then re-enter lawfully. The airline company would accept your advance parole document rather than a visa to authorize your entry into the U.S. You should still carry your passport with you though. Advance parole is very important if you are trying to obtain a green card (and later citizenship) because unlawful entry creates more red flags with immigration judgements. Advance parole is not intended for you to vacation, it should be travel used for things like education, medical treatment, employment, humanitarian reasons or other urgent matters such as a funeral.
*Having an advance parole document does not guarantee that you will be allowed to reenter the United States. At the airport or border, a U.S. Customs and Border Protection (CBP) officer will make the final decision about whether to allow you to reenter the United States.
How long does getting a green card take for DACA recipients?
The time frame to obtain a green card as a DACA recipient will depend on a number of considerations and the application process that is appropriate for your situation. For instance, if you are applying for a marriage green card from inside of the United States then you would file Form I-130 followed by Form I-485 but if you were applying from your country of origin then you would need to file Form DS-260 instead of the I-485. If your spouse is a citizen and your case calls for an adjustment of status from within the U.S. then you can file Form I-485 and Form I-130 simultaneously. What if you spouse is a permanent resident and not a U.S. citizen? You would need to wait for your I-130 request to be approved prior to filing the I-485 and that can take upwards of 12 months to process the I-130 plus an additional 11-26 months (or more due to COVID) for the I-485.
Does getting married affect DACA?
Getting married to a U.S. citizen as a DACA recipient does not affect your DACA status but it does offer a pathway to obtain a green card and later naturalization assuming you meet all the eligibility requirements. Since there currently is no pathway to citizenship for DACA recipients, a marriage green card can be a solution if you are seeking permanent residency in the United States.
How do I renew DACA?
If you have DACA in addition to a work permit, it is a good idea to renew them at the same time. If you do not renew them simultaneously then you risk having your work permit be denied. In terms of time frame, you should submit the renewal request approximately five months prior to the DACA expiration. File Form I-821D to renew DACA and Form I-765, Application for Employment Authorization, to renew your work permit. Note – DACA recipients are required to explain why they need a work permit so if you have housing expenses, childcare costs, etc. list your necessities in Form I-765WS. In the event that you have had a major life change, like a marriage or a name change, you should indicate that in your renewal application I-821D. What’s more, if you have had any issues with the police (arrests, court hearings, etc.) since first obtaining DACA status, you need to include copies of the court dispositions. Always discuss any criminal activity with your lawyer so they can best handle your case with immigration officials.