I have DACA and I am married to an American citizen. How can I fix my status?
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There are several contexts in which a person who has DACA can obtain legal status in the United States if their husband or wife is an American citizen.
First of all, what is DACA?
DACA or Deferred Action for Childhood Arrivals allows people who arrived in the United States when they were children to avoid deportation and receive temporary immigration status.
On June 15, 2012, the then-Secretary of Homeland Security, Janet Napolitano, issued a memorandum on entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Through it, those individuals that arrived in the United States when they were children – and who meet specific criteria – could request consideration of deferred action for a two-year period and subject to renewal.
However, DACA does not guarantee lawful permanent residence or naturalization as a US citizen, which is why many DACA recipients, also known as DREAMERS, seek to adjust their legal status if they have married a US citizen.
How can you obtain legal status if you have DACA and married a US citizen?
If you have DACA and entered the United States legally with a visa and later on it expired, you can arrange your legal status while remaining in the country because you have a legal entry with the visa.
You will need the receipt, but in this case, since your husband or wife is an American citizen, you can obtain status without having to leave the country.
There is a second way to obtain legal status even if you entered the country illegally and have DACA. The first thing that you need to do is file form I-130. Immigration services will also have to verify that your marriage is legitimate and not fraudulent.
If I-130 is approved, we would have to evaluate when you received DACA. If it was before you were 18 years old, and it has never been canceled at any point, you have not accumulated an illegal presence.
The law says that if you remain in the United States after you are 18 years old, for one year or more, without authorization, you accumulate what is known as illegal presence, which requires a waiver that is obtained through form I601A.
If immigration approves your I-130 form without illegal presence, the case is transferred to the national visa center, and we can begin to prepare a case for the consulate in your natal country. If you are from Mexico, for example, it will go to Ciudad Juárez.
Then, you will obtain an appointment at the consulate. If there are no issues, you can have your medical test and everything required to come back to the United States with a visa.
What happens if you received DACA after you turned 18 years old?
If you received DACA when you were, for instance, 22 or 23 years old or after having an illegal presence for a few years, after filing I-130, you need to file the I601A waiver that excuses the unlawful presence in the United States.
We will also have to allege extreme hardship for your U.S. Citizen or Lawful Permanent Resident spouse or parent if you were sent to another country while waiting for your immigration case to resolve.
If everything goes smoothly, the waiver is approved. The case will be transferred to the consulate in your native country and continues a normal process.
Military Parole in Place
If you have children or relatives active or inactive in the military, even if they were given an honorable discharge, you can apply for military parole. It is practically a legal fiction that will provide you with legal entry to the country and the opportunity to get a work permit, even though you can also obtain it with DACA.
Military parole will stamp your passport and verify that you have a legal entry into the country, and we can continue the process as we explain in the first example in the article.
All of the cases explained above can allow you to fix your legal status without leaving the United States.
Finally, if a relative had petitioned for you in an application that was filed before April 30, 2001, we can also check if we can fix your status without you having to leave the US. We would need to evaluate if we can resurrect the petition and combine it with your current eligible petition.
Immigration can be complicated, and no case is ever the same, which is why we recommend that you get advice from an expert immigration lawyer in San Diego, California. You can reach Kannan Law for more information today!