Trying to follow the news about DACA can give you whiplash. First, Donald Trump decided to end DACA (Deferred Action for Childhood Arrivals), leaving some 800,000 young people without access to employment authorization and protection from deportation. Now it appears that Democrats and Trump may have reached a DACA Deal, which would make DACA the law of the land. But will the Republicans in Congress kill DACA as they have other immigration legislation?
While we can’t predict the future, the time is right to consider alternatives to DACA. At the Goldstein Immigration Lawyers, our immigration attorneys have prepared numerous DACA cases and conducted countless consultations with undocumented young people--some eligible for DACA, others not. The path from DACA to green card or other immigration status is a question that we’ve been seriously considering since 2012 when DACA was first put in place.
Once DACA Ends: Immigration Options for Dreamers
Based on this professional experience, here are some immigration options that might work for you if your DACA status is expiring. This blog is not intended as a substitute for an immigration attorney, nor should you consider it to be an exhaustive list of every possible option in immigration law. Instead, consider these immigration options as ideas to explore with the help of a skilled and effective immigration lawyer.
Marriage to a US citizen or Permanent Resident
Marriage is a potential path to a green card for undocumented immigrants. The marriage must be based on a relationship that is “bona fide”, i.e., entered into for good faith reasons. You and your spouse will have to persuade USCIS and possibly a US Consulate abroad that your relationship is genuine. There is no required documentation, but common examples include jointly-filed taxes, jointly-held credit cards and retirement accounts, photographs showing the two of you together as a couple, jointly-held insurance, affidavits from friends and family, proof of cohabitation, and birth certificates of your children.
A key issue in such cases is whether you entered the U.S with inspection. Many with DACA have a valid entry into the United States by traveling abroad with an Advanced Parole travel document. Entry into the U.S. with inspection is crucial because it generally allows you to apply for a green card through adjustment status. This means that you can get your green card in the U.S. without leaving.
Without a valid entry, you may be eligible to get a green card through marriage by using a waiver process called the I-601A. You’ll have to demonstrate that your spouse would suffer extreme hardship. To get approved, you’ll have to travel outside the U.S. to an interview at a consulate abroad. But the benefit of this approach is that you’ll be able to wait for a waiver decision in the U.S.
U visas are issued to those who have suffered substantial physical or mental abuse as the result of a crime. The applicant must be a victim of a qualifying crime and agree to assist a law enforcement agency in investigating the crime. After being in the US for 3 years, you may apply for a green card. Being the victim of crime is a truly unfortunate experience, but it does not mean that you have to leave the United States. The U visa provides an opportunity to remain in the country to help law enforcement and get the justice you deserve.
In order to be granted asylum in the US, you must prove that you fear persecution in your native country based on your race, nationality, religion, political opinion, or membership in a particular social group. In order to convince the government that your fear is legitimate, you must submit plenty of supporting evidence to show that you have a “well-founded” fear of persecution.
There is always a one-year deadline after entering the US to apply for asylum. However, this requirement does not apply to those under 18. If you file for asylum within a year after turning 18 (or any time while you’re still under 18), your asylum application won’t be denied for late filing.
If you last entered the US more than 1 year ago, as is the case for most DACA recipients, you will also be required to show that either the reason you are filing late is due to changed circumstances that are materially related to your eligibility for asylum, or extraordinary circumstances prevented you from timely filing the application. In order to assess whether these exceptions might permit you to submit a late-filed application for asylum, you should consult with an experienced immigration attorney.
Temporary Work Visas combined with Hranka Waiver
Some with DACA may be eligible for a temporary work visa, such as an O-1 visa, an H-1B visa, or an E visa. But an obstacle to getting this visa is that they may have “unlawful presence” or other immigration violations. A possible solution is through a “Hranka” or 212(d)(3) waiver.
The Hranka waiver is available at a U.S. Consulate abroad, which means that you would have to leave the U.S. This waiver is based solely on discretion, so immigration authorities have broad authority to deny the waiver, but they can also approve a Hranka waiver application on discretionary grounds.
There are certain types of temporary (nonimmigrant visas) that DACA recipients may wish to obtain, all of which are employment-based visas. The H-1B visa, for example, requires the applicant to possess a Bachelor’s degree or the equivalent in a specific field.
Green Card Based on 245(i)
To qualify for 245(i) adjustment of status, an immigration petition (e.g., I-130, I-360, I-526, or labor certification) must have been filed on your behalf on or before April 30, 2001, and you must have been physically present in the United States on December 21, 2000. The petition must have been “approvable” at the time of filing.
You may also qualify for adjustment of status under 245(i) as a so-called derivative beneficiary. A derivative beneficiary is a spouse or child of the person for whom the petition was filed. The relationship must have been in existence on or before April 30, 2001. That means children who were born after that date or spouses whose marriage took place after that date cannot adjust under 245(i).
We suspect that only a small fraction of those with DACA are eligible to take advantage of 245(i) provisions
Special Immigrant Juvenile Status
Foreign children who are the victims of abuse, neglect or abandonment, can seek Special Immigrant Juvenile (SIJ) Status through the U.S. Citizenship and Immigration Services. The SIJ program provides a path to legal residence for certain qualifying children. If you are under the age of 21, unmarried and physically present in the United States and have obtained a qualifying juvenile court order, you may eligible for SIJ status. The court order must make a finding that you were the victim of abuse, neglect or abandonment, that reunification with your parents or parent is not viable as a result, and that it is not in your best interest to return to your country of birth. Later, after you receive your green card, you can seek to become a U.S. citizen.
Cancellation of Removal
Cancellation of removal is a defensive form of relief that you can apply for before an Immigration Judge. If you are not in removal proceedings and do not have a hearing to appear in Immigration Court, then you are not able to apply for Cancellation of Removal. There are two types of cancellation of removal, one for green card holders and another for those without permanent status, called Non-LPR Cancellation of Removal.
For individuals who find themselves in immigration court but who do not have permanent immigration status (such as DACA recipients), you may be eligible for non-LPR cancellation if you have been in the United States for 10 years or more, have not been convicted of certain crimes, have otherwise been a person of “good moral character,” and have a U.S. citizen or permanent resident spouse, child, or parent who would suffer an incredible amount of hardship if the applicant could not remain here in the United States.
Even if you satisfy all of the eligibility requirements, it is still up to the immigration judge to decide whether to use his or her discretion to approve your application or not. If you or a relative find yourself in immigration court and think you might be eligible for non-LPR cancellation, contact the Goldstein Immigration Lawyers today. It is important that you work with an experienced immigration attorney in Los Angeles if you decide to seek cancellation of removal.
Immigration through adoption is unlikely to be a viable legal option for most with DACA because of these basic requirements:
- The adoption must be finalized before the adoptive child turns 16;
- The adopting parents must have legal custody for at least 2 years; and
- The adoptive child must physically live with the adopting parents for 2 years.
After meeting these requirements, you might be able to file a form I-130 and I-485 to get permanent residency. But most with DACA will be unable to meet these requirements. Immigration through adoption is complex and we recommend that you consult with an immigration attorney to know whether it’s a possible option for you.
Warning for those with DACA and Final Orders of Removal/Deportation
Some people who have DACA also have final orders of removal or deportation orders. This means that you are subject to deportation but are being protected by your DACA status. But if or when DACA is no more, you will be at risk of deportation. And in this case, you could be deported by reinstating the order. This means your deportation could happen without any right to see an Immigration Judge.
If you think you might have a deportation order but aren’t sure, it’s important to consult with one of our lawyers immediately so we can help you find out. If you do have an order of removal or deportation, we could help you explore whether it is possible to file a motion to reopen or rescind the order. If your deportation is imminent or if you are already on ICE’s radar, it may make sense to file a Stay of Removal.
Call our Immigration lawyers today
The immigration attorneys in our Los Angeles, California office are ready to help you and advise you on the best course of action. For those with DACA, we can recommend a practical solution based on your specific situation or issues. Our immigration lawyers can help guide you and your family through the process from start to finish. Call us today to schedule an immigration strategy session today.