A DACA Recipient can apply for an immigrant visa if they have a Qualifying Relative (US Citizen or LPR/Green Card holder) that is willing to petition through the I-130, Petition for Alien Relative.
Immigrants who have years of unlawful (undocumented) presence in the United States (like many DACAs) are considered "inadmissible" and not eligible to apply for an immigrant visa without the penalty of being barred from the United States for 3 to 10 years. [*Note: if you became DACA approved before your 18th birthday, you will not accrue unlawful presence as long as you do not lapse in your DACA status].
Immigration law present in regulation INA 245(a) can allow a DACA individual the opportunity to waive their unlawful presence IF:
The DACA Recipient has a legal entry to the United States on record
What is INS 245(a)?Guidelines in Section 245(a) of the Immigration and Nationality Act (INA) detail that an immigrant's record of a legal entry into the United States can waive their years of unlawful presence, allowing DACA Recipients to apply for an immigrant visa.
Requirements for Green Card Applicants
Applicant must have a legal entry into the United States
The first guideline requires that the DACA Recipient has a record of lawful entry the United States following inspection (or parole) by an immigration officer. Some DACA Recipients may already have a legal entry on record from an initial entry with a previous visa.
DACA Recipients can also achieve a legal entry on record after re-entering the United States with the I-131 Travel Document after credible travel outside of the country for educational, humanitarian or employment reasons.
Applicant is eligible to receive an immigrant visa and is admissible to the United States for permanent residence
"Eligibility to receive an immigrant visa" can be established through a family based petition (like the I-130) where a Qualifying Relative (like a US Citizen or LPR/Green Card holder) petitions to sponsor the DACA recipient.
"Admissibility" is established once the DACA Recipient has used their I-131 Travel Document to lawfully re-enter the United States.
Immigrant visa is immediately available to the Applicant at the time of application filing
At the time of submission, the immigrant visa must be "immediately available" , disqualifying this opportunity for visa categories that are severely backlogged.
Please refer to the current Visa Bulletin to see the application date currently being processed this month.
At this time, DACA Recipients that are married to a US Citizen are eligible for an immediate visa.
The Bottom LineIf you are a DACA Recipient married to a US Citizen, we strongly encourage you to consult with an immigration attorney to evaluate your record or your eligibility for a legal entry into the United States.
Call our office at (951) 588 9838 to set up a consultation with an attorney.