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DACA + Advance Parole + Marriage to a U.S. Citizen = Adjustment of Status?

March 12, 2019

DACA recipients who entered the United States without inspection and have an immediate relative petition, may be able to obtain lawful permanent resident status within the United States. Only DACA recipients who fit certain criteria can do this; those criteria will be explained in depth below.

 

Advance Parole for DACA Recipients

 

Individuals who received deferred action under DACA may request permission to temporarily travel outside of the United States through a process known as “advance parole.” 

A DACA recipient must request and receive advance parole approval before traveling outside of the United States. If a DACA recipient travels outside of the United States without advance parole, USCIS may terminate her deferred action, and she will not be eligible to apply for renewal of DACA or file a new initial application.

 

Advance Parole and Grounds of Inadmissibility

 

Traveling outside of the United States, even for DACA recipients with advance parole, always carries a risk of being unable to return lawfully. In most cases this risk may be small, but still must be fully evaluated in case more complicated issues arise. DACA recipients interested in traveling abroad through advance parole should consult with an expert immigration practitioner before leaving the United States to evaluate the risks and benefits of such travel. 

While advance parole permits a person to enter the U.S. in spite of their lack of a visa, CBP will still screen travelers for admissibility and may question their entire immigration history upon seeking reentry. Therefore, it is essential to determine if there are any circumstances in a person’s immigration history, such as a prior removal order or other grounds of inadmissibility that could present risks to reentering successfully. Even if there are no complications, however, CBP officers retain discretion to deny entry. Accordingly, there is no absolute guarantee that a person traveling with advance parole will be authorized to re-enter. Applicants do not need to meet all the requirements for admissibility under immigration law to receive DACA. Accordingly, a person may be eligible for DACA but not otherwise “admissible” under immigration law.

 

Advance Parole and Adjustment of Status

 

A DACA recipient who travels on advance parole may gain the ability to adjust status in the United States upon her return if she meets the requirements for adjustment under existing immigration law. To adjust status, a person must have been inspected and admitted or paroled into the United States, among other requirements. Many DACA recipients originally entered the U.S. without inspection, and therefore are not able to apply for adjustment of status within the United States under INA §245(a). Obtaining DACA and then travelling and re-entering the U.S. with parole, may give some of these individuals the ability to adjust status through an “immediate relative” family member after their return to the U.S. 

Keep in mind that advance parole is not required to adjust status to permanent residence in some cases. Any applicant who meets the requirements in INA §245 can qualify to adjust to permanent residence. Only in the case of someone who last entered without inspection and who is an “immediate relative” of a U.S. citizen, does advance parole become central to qualifying for adjustment. 

DHS may adjust a person’s status to permanent residence if they meet the requirements of INA §245(a): 1) she must have been admitted or paroled into the U.S.; 2) she must apply for adjustment; 3) she must be eligible to receive an immigrant visa and be admissible to the United States for permanent residence, and 4) an immigrant visa must be available when they file the adjustment application. 

A person who gets advance parole, travels outside the U.S., and re-enters the country pursuant to advance parole has now been “paroled” into the country. This person is no longer subject to inadmissibility under INA § 212(a)(6)(A)(i). The fact that they previously entered without inspection does not affect this analysis.

 

Summary of Requirements

 

DACA recipients who entered without inspection, but who are not subject to any other grounds of inadmissibility (or who can get a waiver of their inadmissibility), may be able to adjust status as immediate relatives, if they successfully obtain a grant of advance parole and are paroled back into the United States after travel. As always, a person seeking to adjust status must have an immigrant visa immediately available to them, to be eligible for adjustment, and must not be inadmissible.

 

 

 

 

 

 

 

 

 

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