The DACA to Green Card Path to Citizenship

DACA immigration status provides benefits to Dreamers, but the only way to ensure your stay in the United States is by becoming a U.S. citizen. As a DACA recipient, there are ways that you can obtain a green card and eventually citizenship. We often get the question, “Can a DACA recipient apply for citizenship?” Yes, you can—under certain circumstances. Our green card lawyers would be happy to talk to you about your options.

What Is DACA?

The DACA program—or Deferred Action for Childhood Arrivals—is a policy that protects children whose parents brought them to the United States unlawfully. DACA cardholders are commonly known as Dreamers (for The Development, Relief, and Education for Alien Minors Act). DACA recipients can stay in the United States and can have a job. If you are wondering what kind of visa program DACA is, it is a program that protects undocumented immigrant youth and provides a work permit. With DACA, you can also have a driver’s license and social security number.

Can DACA cardholders be deported? No, DACA cardholders are protected from deportation. DACA does have some complications, however. The DACA renewal period is short, and it is recommended that you submit your application for renewal between 150 to 120 days before your DACA expires.

Below, we will discuss the ways of transitioning to a green card from a DACA card. As a disclaimer: The latest DACA 2021 news is currently shifting as the U.S. District Court for the Southern District of Texas took the stance that the DACA policy is illegal. The Texas judge has blocked new DACA applicants. This latest DACA 2021 news is an ongoing story and is still currently unfolding.

DACA News 2021: The American Dream and Promise Act

The history of DACA has been one of ups and downs. Under the Obama administration, undocumented young people could officially obtain DACA status starting in 2012. This allowed Dreamers the opportunity to participate in their communities around the United States. 2017 brought changes under the new Trump administration when DACA was declared over. In June 2020, the Supreme Court denied the termination of DACA. However, immigration law drastically changed as the number of protections for immigrants and immigrant applicants declined.

House Passes Pathway to Citizenship

In present-day news, DACA legislation has been temporarily protected by Executive Order, but a lasting impact for the program and Dreamers is still unconfirmed. On March 18, 2021, President Biden spoke about the American Dream and Promise Act of 2021. This new policy is a pathway to citizenship for DACA recipients.

The American Dream and Promise Act allows Dreamers and Temporary Protected Status (TPS) holders legal status in the United States. This latest policy and DACA legislation are for Dreamers and TPS holders who meet certain eligibility criteria. The DACA path to citizenship requirements requires a Dreamer (or TPS holder) to:

• Remain in the U.S. for at least four years after the bill was passed
• Have Dreamer Status (under 18 when brought to the U.S.)
• Have no criminal record
• Be enrolled in or graduated from school, or serve as part of the military

These requirements fall under DACA rules for citizenship overall as well, which we will discuss below. Obtaining legal status in the United States allows you to apply to transition from DACA to citizenship after five years. The bill, which was introduced by Rep. Lucille Roybal-Allard (D-CA), was passed by the House of Representatives on March 18, 2021. The American Dream and Promise Act creates a DACA path to citizenship.

How Can a DACA Recipient Get a Green Card

We sometimes get the question, “Does DACA count as a permanent resident?” The answer is no, as you still must obtain a green card to become a permanent resident.

The ways of getting a green card depend on the ways in which you entered the United States and your marital status to either a citizen of the United States or a Lawful Permanent Resident (LPR). Below, we will discuss the ways of obtaining a green card as a DACA recipient.

DACA Road to Citizenship: Entering the U.S. Unlawfully

For those who came to the United States unlawfully, the question remains, can DACA recipients become citizens? You can, but—depending on your current status—the process can be long and difficult.

Coming to the United States unlawfully does have legal consequences. With a DACA card, you are legally able to remain within the U.S. If you are an undocumented immigrant, you may have an unlawful presence and be asked to leave the country.

Working with an immigration attorney may help with the process of citizenship because bans based on unlawful status can get complicated. If you have entered the U.S. unlawfully, do not lose hope. Though the process of obtaining citizenship may include many obstacles, you may still be able to apply and gain legal entry into the country.

If you were a DACA cardholder but lost DACA status, you may be subject to unlawful presence. Unlawful presence also depends on your age and when you applied for DACA. If you have 180 days of unlawful presence, you will face an automatic three-year ban. Depending on how long your unlawful stay in the United States lasted, you may be subject to a 10-year ban. This is where Form I-601 comes into play. You can apply for a waiver that is a request to waive the bans placed on you.

Why Can’t DACA Recipients Apply for Citizenship?

There is a permanent ban for individuals who have entered the United States unlawfully multiple times. If you are a DACA recipient who has unlawfully entered the U.S. several times, you may not be able to apply for citizenship. The permanent ban means that you are not allowed to re-enter the United States and are not allowed to apply for a ban waiver.

Other reasons why some DACA recipients can’t apply for citizenship include committing a crime while holding DACA status and misrepresenting oneself as a U.S. citizen.

DACA Path to Citizenship: Entering the U.S., Form I-601A, and Advance Parole

When You Have Unlawful Entry Into the United States

Entering the United States unlawfully means that you were not inspected by the U.S. Customs and Border Patrol nor do you have a visa. Applying for a visa when you have unlawfully entered the United States will require consular processing and applying for your green card from abroad.

Consular processing is available to you if you applied for DACA before you turned 18. You can even apply for DACA and go through this process within 180 days after your 18th birthday.  You will apply from your country’s U.S. embassy or consulate.

If you are a DACA card recipient who has an expired card and has left the country, then you are not seen as a lawful resident. In some cases, even applying for DACA 180 days after you turn 18 can be seen as a red flag, as there may be the assumption that you did not have DACA status and were in the United States illegally, which results in a re-entry ban. In these cases, you need to stay in your home country or outside of the U.S. before applying for a green card. If you are placed on a ban from the United States, there is a way to apply for a waiver.

Form I-601A

You may be able to apply for and submit Form I-601A, Application for Provisional Unlawful Presence Waiver. This form can help you, a recipient of DACA, gain a pardon for the unlawful time spent in the U.S. The form is submitted to U.S. Citizenship and Immigration Services (USCIS). With assistance from your immigration attorney, you may submit this form to request a waiver for the time you were in the United States unlawfully. This form is used to show the hardship you will face in your home country if your ban is not lifted. The filing fee for Form I-601A is $630, not including the biometrics service fee of $85.

Form I-160A functions as a risk avoider. This means that you, the DACA card recipient, can return to the United States without risk or fear of entering the country unlawfully. It is typical that, since the waiver is for unlawful presence in the U.S., you leave the United States to have an interview in your home country. If you have questions about this process of filing, interviewing, and returning to the United States, your immigration lawyer can walk you through each step of the process.

Advance Parole

If you are a DACA cardholder and have left the United States, you may be able to re-enter the United States legally using Advance Parole. You can apply for Advanced Parole if you left the United States because of:

• A medical appointment or other humanitarian needs
• Your education
• Employment

Advance Parole is for DACA card recipients who have left the United States and wish to come back lawfully. The purpose of Advance Parole is to allow DACA recipients to lawfully enter the United States and thus legally begin their DACA path to citizenship.

Entering the U.S. Lawfully

Only when you enter the United States lawfully are you allowed to apply for permanent residency. Being a DACA recipient, your first entry to the United States was unlawful, but you can make your entry lawful through the Advanced Parole factors listed above. If you are a DACA recipient, you may also become undocumented by staying past your DACA expiration period.

If you have gone through the steps of lawful entry, yet your DACA has expired, you are still allowed to apply for Adjustment of Status because you are still considered as having a lawful entry. With your lawful entry requirement satisfied, the process of applying for a green card can be expedited, as opposed to entering the U.S. unlawfully.

INA 245(a) Adjustment

Under the Immigration and Nationality Act (INA), as a Dreamer, you may be eligible to transition from a DACA card to a green card by waiving the time needed outside the United States and obtaining an Adjustment of Status. Section 245(i) allows Dreamers to have a green card no matter their type of entry into the U.S., their lack of work authorization, or if their stay in the U.S. has been unlawful since they entered.

DACA to Green Card Through Employment

Because DACA recipients are young people, it is rare that a DACA holder can obtain a green card through employment. In order to do so, their employer must file an immigrant petition—Form I-140 or Form ETA-750. Speak with your immigration lawyer if you are considering taking the route of DACA to green card through employment.

DACA Path to Citizenship Through Marriage

If you are a DACA recipient and are now in the position where you are in a relationship with the desire to marry, you may be able to get a green card through your marriage status. DACA and naturalization can be complicated but can be attained with the help of a good immigration attorney.

It’s important to note that taking the marriage route to citizenship requires that the marriage is in good faith, meaning the relationship needs to be legitimate and not just used as a means for citizenship. That being said, unlawful marriage is a rarity. Your immigration attorney can help prove that your relationship is, in fact, lawful and loving.

There are two ways of obtaining a green card through marriage. The first is if you married a U.S. citizen, the second is if you married an LPR.

DACA Marrying U.S. Citizen

To get a green card by marrying a U.S. citizen, you can petition for Adjustment of Status. Your spouse must petition for you, as they are the U.S. citizen and they need to establish their relationship with you, the eligible relative.

If your partner is wondering how to sponsor a Dreamer, all they need to do is petition on your behalf, making you the beneficiary of the form. Your partner will file Form I-130, Petition for Alien Relative. You will also need to file Form I-485, Application to Register Permanent Resident or Adjust Status. Since you are both legal residents and your spouse is a U.S. citizen, you can file your Form I-485 from within the United States.

After you file Form I-130, you still need to apply for a marriage green card. Form I-130 seeks permission to be approved to apply for Adjustment of Status; DACA holders can do this through marital status and it is not considered a marriage visa.

You will need to complete a biometrics exam and attend an interview with USCIS, if applicable. Once you are approved and the marriage is declared lawful, you can obtain your green card.

DACA Marrying Lawful Permanent Resident

To marry an LPR, you follow similar steps as you do for marrying a U.S. citizen, except the process may take longer and include additional steps. You still need to file Form I-130. If you are in the U.S., your additional documents include Form I-485 or Form DS-260 if you are applying from abroad. However, the major difference between having a spouse who is a U.S. citizen and one who is an LPR is that you must wait until your Form I-130 is approved before applying for Adjustment of Status when your spouse is an LPR.

DACA to Green Card Through Marriage Timeline

The timeline can take between eight months to two years to complete but may also take longer. Important considerations include the four-six month timeline for your Form I-601A waiver (if this is a step you must take) and the variance in time between your Form I-130 approval and Form DS-260 approval if you are married to an LPR. This can take an additional four to eight months or longer.

DACA Last Name Change After Marriage

You can change your last name by going to the Social Security Administration office with your marriage certificate and your DACA certificate and another form of ID. You can also speak with your immigration attorney to file additional forms.

Contact an Experienced Immigration Lawyer Today

The experienced immigration attorneys at Scott D. Pollock & Associates P.C. can help you with the process of transitioning from being a DACA card recipient to obtaining citizenship. If you have any questions about your current DACA status or ways of transitioning from DACA to citizenship, please contact the attorneys at our firm. We are here to help you with all your immigration needs. Contact us at 312.444.1940 or fill out an online form today.

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