Can a beneficiary of DACA adjust status based on marriage to a US Citizen?

DACA or Deferred Action for Childhood Arrivals is a program that began under the Obama administration. On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and met several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status. It simply defers any negative action towards an undocumented person who came to the US as a child.

In addition, under the Obama administration it was possible for recipients of DACA to apply for "advance parole" - permission to travel outside the United States and return (based on certain circumstances). This travel abroad and return to the US was a technicality that enabled DACA recipients to be eligible to apply for a green card (adjustment of status) in the United States.

Without advance parole, DACA recipients are ineligible to apply for adjustment of status without taking on a risk. They must travel back to their home country, apply for an extreme hardship waiver and then return to the United States. Unfortunately, this option is risky - the waiver is difficult to prove and get approved and re-entry to the US may be discretionary depending on the Customs and Border Protection Officer's determination.

DACA recipients remain in a precarious situation as the new administration wrestles with proposed changes to the classification. Due to federal court orders, USCIS is continuing to accept requests to renew a grant of deferred action under DACA. USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. For the time being, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.

This post is for informational purposes only and should not be construed as legal advice. Please seek the advice of an immigration attorney regarding your specific situation.



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