If you’re a DACA recipient (Deferred Action for Childhood Arrivals) and wondering if you’re eligible to apply for a green card through marriage, you’re not alone. Many Dreamers are in the same situation. While the path to a green card through marriage can be complicated, it’s possible. However, whether or not you qualify depends on a few important factors. This guide will explain all you need to know about it.
Key Factors to Consider:
- Are you married to a U.S. citizen or a green card holder (permanent resident)?
- How did you enter the U.S. – legally or illegally? If illegal, how many times?
- When did you first apply for DACA?
Married to a U.S. Citizen: Easier Process for Many DACA Recipients
If you’re married to a U.S. citizen and entered the United States legally (for example, with a visa or under the Visa Waiver Program), applying for a marriage-based green card is typically much simpler. In this case, even if you overstayed your visa, you may still be able to apply for a green card as if you had legal immigration status.
Complications for DACA Recipients Who Entered Illegally
The process gets more complicated if you enter the U.S. illegally, which is the case for many DACA recipients. If you entered the U.S. without inspection, you might not be able to apply for a green card within the country unless you already have a travel permit.
What Happens if You Have a Travel Permit?
If you’re married to a U.S. citizen and you have a travel permit (also called Advance Parole), you might be able to leave the U.S. for a short period, re-enter legally, and then apply for a green card without any major issues. This is often the easiest scenario for those with a travel permit.
What If You Don’t Have a Travel Permit?
If you don’t have a travel permit and you entered the U.S. illegally, the only way to apply for a green card based on marriage is to leave the U.S. and apply from your home country at a U.S. embassy or consulate.
But there’s good news if you applied for DACA before you turned 18 or within 180 days after your 18th birthday. In that case, you’re essentially treated like any other person applying for a marriage-based green card from outside the U.S., and there’s no additional hurdle.
If You Applied for DACA After 180 Days of Turning 18
If you apply for DACA more than 180 days after turning 18, the situation becomes more complicated. You will likely need to apply for a special waiver (Form I-601A) to avoid being barred from returning to the U.S. for 3–10 years. If you’ve entered the U.S. illegally more than once, leaving the U.S. now could result in a permanent bar from returning.
How Long Does the Green Card Process Take?
The processing time for a marriage-based green card varies depending on who you’re married to. If you’re married to a U.S. citizen, the process typically takes between 11.4 to 15 months. However, if you’re married to a green card holder (permanent resident), the wait can be much longer, often taking several months to a few years.
Eligibility Criteria for DACA Recipients Applying for a Marriage-Based Green Card
DACA (Deferred Action for Childhood Arrivals) recipients may be eligible to apply for a marriage-based green card if they marry a U.S. citizen or lawful permanent resident. However, specific eligibility criteria must be met to navigate this complex process successfully.
Criteria for Applying
- Bona Fide Marriage: The marriage must be genuine and not entered into solely for immigration benefits. The couple must demonstrate that they share a life, which can be evidenced through joint financial accounts, shared responsibilities, and other indicators of a committed relationship.
- Legal Entry: DACA recipients who entered the U.S. lawfully (e.g., with a visa or through inspection) can apply for adjustment of status without leaving the country. If the DACA recipient entered unlawfully, they may need to leave the U.S. and apply through consular processing, unless they have obtained Advance Parole.
- U.S. Citizen or Permanent Resident Spouse: The spouse must be a U.S. citizen or a lawful permanent resident. This status is crucial as it determines the eligibility and process for applying for a green card.
Role of the Spouse
The U.S. citizen or permanent resident spouse plays a vital role in the application process:
- Filing the Petition: The spouse must file Form I-130 (Petition for Alien Relative) to initiate the green card application process.
- Supporting Documentation: The spouse needs to provide evidence of their citizenship or permanent residency and support the claim that the marriage is genuine.
Importance of Proving Genuine Marriage
Proving that the marriage is not solely for immigration purposes is critical. Immigration authorities scrutinize marriage-based green card applications closely. Couples may be required to attend an interview where they will face questions about their relationship, living arrangements, and shared experiences. Providing substantial evidence of a bona fide marriage can significantly enhance the chances of approval.
Impact of DACA Status on Adjustment of Status
DACA status allows certain individuals to apply for adjustment of status without leaving the U.S., provided they meet specific criteria:
- Eligibility for Adjustment: DACA recipients who entered lawfully can adjust their status from within the U.S. by filing Form I-485 (Application to Register Permanent Residence or Adjust Status) concurrently with Form I-130.
- When Adjustment is Possible: DACA recipients are eligible to adjust their status if they have maintained their DACA status and have not violated any terms that would render them inadmissible.
- Exceptions for Consular Processing: If a DACA recipient entered unlawfully and has not obtained Advance Parole, they may need to leave the U.S. to apply through consular processing, which can lead to re-entry bars depending on their unlawful presence.
Inadmissibility Issues for DACA Recipients
DACA recipients may face several common inadmissibility issues:
- Unlawful Presence: Accumulating unlawful presence can lead to three- or ten-year bars from re-entering the U.S., depending on how long the individual was unlawfully present.
- Prior Deportations: A previous deportation order can complicate or prevent adjustment of status.
- Specific Grounds of Inadmissibility: Other grounds include criminal convictions or health-related issues that may affect eligibility.
Unlawful Presence and Waivers
Unlawful presence significantly impacts the green card process, but potential waivers exist:
- Waivers Available: Individuals may apply for waivers under certain circumstances, such as demonstrating extreme hardship to a qualifying relative if they are unable to return.
The Role of Provisional Waivers for DACA Recipients
The provisional unlawful presence waiver (Form I-601A) allows certain individuals to avoid lengthy re-entry bars:
- Eligibility Requirements: To qualify, applicants must demonstrate that their absence would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.
- Using the Waiver: If granted, this waiver allows DACA recipients to leave the U.S., attend their consular interview abroad, and return without facing re-entry bars associated with unlawful presence.
Steps for DACA Recipients to Apply for a Marriage-Based Green Card
The application process involves several key steps:
- File Form I-130: The U.S. citizen or permanent resident spouse files Form I-130 with USCIS.
- Concurrent Filing: If eligible, the DACA recipient files Form I-485 concurrently.
- Supporting Documents: Gather necessary documents such as proof of marriage, evidence of lawful entry (if applicable), and financial support documentation.
- Attend Biometrics Appointment: After submission, applicants will receive a notice for biometrics collection.
- Interview Preparation: Both spouses should prepare for an interview where they will answer questions about their relationship.
What Happens After Submission?
After applying:
- Timeline: The process typically takes 8-14 months.
- Interview Process: Couples will attend an interview where immigration officers assess the authenticity of their marriage.
- Additional Steps: Applicants will receive notices regarding biometrics appointments and decisions on their applications.
Potential Challenges in the Green Card Process
DACA recipients may encounter various challenges during this process:
- Legal Complications: Issues related to inadmissibility can complicate applications.
- Delayed Processing Times: Applications may face delays due to backlogs at USCIS.
- Navigating Risks: Applying while in DACA status carries risks; legal representation is advisable to mitigate these challenges effectively.
Preparing for a Green Card Interview
To prepare effectively:
- Know Common Questions: Be ready to answer questions about your relationship history, daily routines, and future plans together.
- Gather Evidence of Authenticity: Bring documents that demonstrate your life together—joint bank statements, photographs, and correspondence can help prove your marriage’s legitimacy.
Travel Considerations During the Green Card Process
Travel restrictions are significant during this period:
- Travel Restrictions: Traveling while an application is pending can jeopardize its outcome.
- Advance Parole Options: Under certain circumstances, DACA recipients can obtain Advance Parole, allowing them to travel without abandoning their green card application.
In short, while DACA recipients do face some additional challenges when applying for a green card through marriage, it is still possible to obtain permanent residency. The key factors to consider include your spouse’s immigration status, how you entered the U.S., and when you applied for DACA. If you’re unsure about your specific situation, it’s always a good idea to consult an immigration attorney who can guide you through the process and help ensure the best outcome for you.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for a K-1 Visa or a B-2 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you
