Pursuing a Marriage-Based Green Card While Holding DACA Status
Following federal court orders in 2021, DACA renewal remains available, but USCIS is not granting initial requests as of July 16, 2021. This situation is subject to change, which will be reflected on the USCIS website.
If you get DACA status and then marry a U.S. citizen, you may be eligible for a green card based on your marriage. You would need to meet the main eligibility requirements for getting a marriage-based green card. In other words, your marriage must be legal and made in good faith, rather than for the purpose of committing immigration fraud. You also must be able to adjust your status to a green card while staying within the U.S., which is a process available only to foreign nationals who have lawfully entered the U.S. (A foreign national also can get a green card through the consular processing system in their home country, but you should not leave the U.S. if you have DACA status because you may not be able to return.) You can adjust your status only if you are not inadmissible to the U.S. Common grounds of inadmissibility include criminal convictions or unlawful presence in the U.S.
Having DACA status does not prove that you entered into your marriage in good faith or negate criminal convictions on your record. On the other hand, it may help you negate problems caused by unlawful presence in the U.S. and prove that you lawfully entered the U.S.
Requirements for DACA Recipients Are No Different
The requirements for obtaining a marriage-based green card are no different for DACA recipients, but DACA status may affect the process.
Using Travel Authorization (Advance Parole)
The DACA program allows foreign nationals to get permission to travel outside the U.S., known as advance parole. This means that they can leave the U.S. and return based on their travel authorization, which counts as a lawful entry. If you have married a U.S. citizen in good faith and meet the other requirements for adjustment of status, you can use that process to get a green card in the U.S. This will give you lawful permanent resident status, regardless of what happens to the DACA program. However, this area of law is detailed and subject to change, so you should not attempt to leave the U.S. without first speaking to an immigration attorney.
DACA and Consular Processing
A foreign national who is not eligible for adjustment of status may be able to use the consular processing procedures to get their green card. They would need to be aware that a three-year bar on reentry to the U.S. applies if they have stayed unlawfully in the U.S. for 180 days or more. A 10-year bar on reentry applies if they have stayed unlawfully in the U.S. for one year or more. Fortunately, DACA status does not count as unlawful presence, nor does any time that a foreign national spends in the U.S. while they are under 18. If you got DACA before you turned 18 or shortly afterward, you may not have enough days of unlawful presence to trigger either bar.
Collecting Unlawful Presence
Individuals hoping to temporarily leave the U.S. who are unsure of the amount of unlawful presence that they have accumulated or believe that they may be subject to a reentry ban should consult an experienced immigration attorney for more information.
DACA and Permanent Bars
Foreign nationals will be permanently barred from entering the U.S. if they were unlawfully present in the U.S. for at least one year, or were previously removed from the U.S., and then they unlawfully entered or attempted to enter the U.S. again. If you have protection under the DACA program, you likely have accumulated at least one year of unlawful presence in the U.S. This is because you must have lacked legal status when the DACA program was started and must have lived in the U.S. for five years before then to be eligible for DACA.
If you have not left the U.S. since the unlawful stay that makes you eligible for DACA, you probably do not need to worry about the permanent bar. If you left and returned multiple times, the permanent bar probably will apply to you. This means that leaving the U.S. to go through consular processing in your home country may not be a valid route to an immigrant visa and green card, even if you have a valid marriage to a U.S. citizen.