The Deferred Action for Childhood Arrivals (DACA) is a deferred action policy aimed at protecting qualifying, undocumented immigrants who came to the U.S. as children. These children, known as “Dreamers,” are afforded certain legal rights.
Unfortunately, the current DACA policy does not offer Dreamers a direct path to a green card (lawful permanent resident status), or U.S. citizenship, but there are some exceptions.
Although not everyone will qualify, U.S. immigration law offers Dreamers a possible path to a green card, or U.S. citizenship through the following routes:
- A parent who is a U.S. citizen
- Family-based immigration
- Marriage to a U.S. citizen
- Employment-based immigration
- Asylum status
- A U Visa for victims of crime
Going from Dreamer to green card can be extremely confusing. SelfLawyer strongly suggests that you consult an experienced immigration attorney before acting on any DACA matter.
U.S. Citizenship through a U.S. Citizen Parent
Some Dreamers are already U.S. citizens without even knowing it. A child born to a U.S. citizen automatically acquires U.S. citizenship. It is possible for parents who are unaware of their own citizenship to transmit citizenship unknowingly to their child. For this reason, it’s important to ask about the citizenship of your parents and grandparents. Find out where each was born, whether they lived in the United States, and, if so, how they came to reside in the U.S.
The following requirements apply if your parents were married at the time of your birth:
- You are a U.S. citizen if you were born between December 24, 1952, and November 14, 1986, to one U.S. citizen and one alien parent, if your U.S. citizen parent had been physically present in the U.S. for 10 years before your birth, at least five of which were after the age of 14
- You are a U.S. citizen if you were born after November 14, 1986, to one U.S. citizen and one alien parent, if your U.S. citizen parent had been physically present in the U.S. for five years before your birth, at least two of which were after the age of 14
The following requirements apply if your parents were not married when you were born:
- You are a U.S. citizen if you were born between December 24, 1952, and June 13, 2017, to a U.S. citizen mother, if your U.S. citizen mother had been physically present in the U.S. for one continuous year before your birth
- You are a U.S. citizen if you were born between November 15, 1971, and June 13, 2017, if your U.S. citizen father has legally acknowledged fatherhood and your father had been physically present in the U.S. for at least five years before your birth, at least two of which were after the age of 14
Adjustment of Status and Consular Processing
In almost all cases, Dreamers who seek to obtain a green card must either file a petition for adjustment of status or return to their home country and undergo consular processing. This is where almost all Dreamers run into trouble in the green card application process.
Adjustment of Status
U.S. immigration law, through the Immigration and Nationalization Act (INA), offers two paths for Dreamers to overcome their undocumented immigrant status when filing for adjustment of status.
Section 245(a) of the INA requires that you be “inspected and admitted or paroled” upon your last entry to the U.S. This means that you must cross at a port-of-entry and be interviewed by a U.S. border patrol officer. Unfortunately, most Dreamers entered the U.S. without a border patrol interview, making them ineligible under section 245(a).
An exception applies if you entered the U.S. illegally but were later granted permission to leave and re-enter the U.S. (known as “parole”) and did so at a port-of-entry with an interview by a border patrol officer. If this applies to you, your last entry into the U.S. is considered lawful under section 245(a). Assuming all other immigration requirements are met, you should be able to file for adjustment of status.
Section 245(i) might offer an alternative option. If you are the beneficiary (or derivative beneficiary) of an approved immigration petition that was filed on or before April 30, 2001, if there is a visa immediately available for you, and if you are otherwise admissible, section 245(i) allows you to pay a $1,000 penalty. Some types of petitions require you to prove that you were physically present in the U.S. on December 21, 2000.
Adjustment of status through consular processing offers its own set of obstacles for the undocumented Dreamer. Consular processing requires you to return to your home country while the U.S. Embassy in your home country processes your immigration visa application and conducts your interview. However, because you entered, lived, and/or worked in the U.S. as an undocumented immigrant, your return to your home country will trigger an unlawful presence bar, making you inadmissible (meaning you cannot enter the U.S.) for a period of three or ten years.
Again, there is an exception. If your only ground for inadmissibility is an unlawful entry, you might be able to avoid an inadmissibility bar through a provisional waiver. This waiver will allow you to remain in the U.S. while the U.S. Embassy in your home country processes your immigration visa application and schedules your immigration interview. You can then return to your home country for your interview with your inadmissibly waived by your provisional waiver.
To qualify for a provisional waiver, you will have to prove that a U.S. citizen or LPR spouse, parent, or child would suffer extreme hardship if the waiver is not granted. “Extreme hardship” is a difficult but not impossible standard to prove.
Do you have an eligible family member who can sponsor you for immigration?
- Are you the spouse of a U.S. citizen or LPR?
- Are you the child of a U.S. citizen or LPR?
- Are you the adopted child of a U.S. citizen?
- Are you the parent of a U.S. citizen who’s at least 21 years old?
- Are you the grandchild of a U.S. citizen?
- Does your spouse have a parent who is a U.S. citizen?
- Are you the brother or sister of a U.S. citizen?
- Do you have an aunt or uncle who is a U.S. citizen?
If you can answer yes to any of these questions, you might be eligible for family-based immigration through sponsorship. Family-based immigration requires you to comply with the adjustment of status requirements discussed above.
Marriage to a U.S. Citizen
A big misconception of Dreamers is that if they marry a U.S. citizen, their green card is guaranteed. Unfortunately, this is not true.
Even if you marry a U.S. citizen, you still have to either adjust your status or undergo consular processing in your home country. Thus, the Adjustment of Status/Consular Processing discussion from above applies, rendering many (if not most) Dreamers ineligible for green cards even after marrying a U.S. citizen.
Have you ever been sponsored for an employment-based immigrant visa? If not, would your current employer or a prospective employer be willing to sponsor you for LPR status?
As a Dreamer, employment-based immigration might be possible if you obtain a PERM labor certification from the Department of Labor before the sponsoring employer can file the employment petition. This means that even if the employment-based Visa Bulletin indicates an immigrant visa is available, it could take a year or more before the employer can file an employment petition, and, presumably, you could file an adjustment of status application or start consular processing while your sponsoring employer’s I-140 petition is being processed.
Unfortunately, the Adjustment of Status/Consular Processing discussion from above applies, rendering many (if not most) Dreamers ineligible for green cards even after an employer has petitioned for an employment-based visa on their behalf.
Asylum status is available to anyone in the United States who has suffered persecution in his or her home country or who has a well-founded fear of persecution. In general, eligibility for asylum requires the following:
- You are present in the United States (by legal or illegally entry)
- You are unable or unwilling to return to your home country due to past persecution or because of a well-founded fear of future persecution if you return
- The reason for persecution is related to one of five things: race, religion, nationality, membership in a particular social group, or political opinion
- You are not involved with an activity that would bar you from asylum
Dreamers are eligible to apply for a permanent resident status (green card) one year after being granted asylum status.
U Visa for Victims of Crime
Created in 2000, the Victims of Trafficking and Violence Prevention Act offers a U visa to protect non-citizens who have been victims of certain crimes and who have aided law enforcement. The U visa was created to encourage victims to cooperate with police and prosecutors without the fear of deportation. A U visa provides legal status, employment authorization, and can also provide a path to permanent resident status (green card) in some circumstances.
There are four eligibility requirements for a U visa:
- The individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity
- The individual must have information concerning that criminal activity
- The individual must have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime
- The criminal activity violated U.S. laws
The victim must have useful information related to the crime and be willing to cooperate with police and officials responsible for investigating the case.