Green Card Through Advance Parole for DACA Recipients Married to a U.S. Citizen

Update:

The USCIS as of September 5th, 2017, is no longer issuing requests for Advance Parole to holders of Deferred Action.  Our opinion at MJ Law is that those individuals who have already been approved for Advance Parole should fully consider the potential problems of returning to the United States.  While the Trump administration has made it somewhat clear that will honor these previously issued approvals to travel outside of the United States, the fact that they are no longer issuing them causes us concern for those deciding to travel outside of the United States at this time.  Our San Jose immigration law office is currently recommending I-601A Waivers for those who qualify for them as a means to become Permanent Residents, if they are already married to Lawful Permanent Residents or United States Citizens.

Original post:

Lately, there has been a lot of talk about President Obama’s speech on “Executive Action” and with that many people are still waiting for a “real change” to occur.
Before, the only way for an undocumented immigrant to obtain a green card is through filing for a Provisional Unlawful Presence Waiver (I-601A). The waiver process allows immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the U.S. and before they leave to attend their immigrant visa interview abroad. The applicant must prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver. Many waivers have been denied due to the fact that there is insufficient proof of extreme hardship.
Well, there is good news for DACA recipients who are married to U.S. Citizens. Instead of filing for an I-601A waiver, the DACA recipient can apply for Advance Parole (I-131) to leave the country (with permission from the USCIS) and then re-enter legally. Once the DACA recipient enters the country legally, they can file for an Adjustment of Status through their spouse without having to leave the country again for an immigrant visa interview.
What is Advance Parole?

• Advance Parole is a special discretionary authority granted from the Department of Homeland Security to allow an inadmissible person to physically proceed into the United States.

Who qualifies for Advance Parole? 

• If your DACA was approved and you have enough evidence to show that your purpose is valid, then the Advance Parole may be granted. Note: The DACA recipient must get their Advance Parole granted by the USCIS before they depart the U.S.

Here are a few things to keep in mind if you want to take this route:

• The USCIS will only grant advance parole if your travel abroad will be for:
  1. Educational purposes, such as semester abroad programs or academic research;
  2. Employment purposes, such as overseas assignments, interviews, conferences, training, meetings with clients; or
  3. Humanitarian purposes, such as travel to obtain medical treatment, attend funeral services for a family member, or visiting an ailing relative.
  4. Note: Travel for vacation is not a valid purpose.

• As much evidence as possible must be provided in order to explain the purpose of intended travel abroad. For example, if someone’s trip involved a(n):
  1. Humanitarian purpose, proper evidence includes:
     • A letter from a medical professional explaining the reason for the need to travel abroad to obtain medical treatment;
     • A letter from a hospital or treating medical professional explaining the relative’s ill condition; and/or
     • A death certificate for a deceased relative
  2. Educational purpose, proper evidence includes:
     • A letter from an educational institution explaining the purpose of travel abroad; or
     • A document showing enrollment in a program or class and documents showing theapplicant is required to travel for a program or class or will benefit from such travel.
  3. Employment purpose, proper evidence includes but is not limited to the following:
     • A letter from an employer explaining the need to travel abroad; and/or
     • A document showing an employment need, such as a conference or training program,and showing the applicant’s participation.

•  Once you reenter the U.S. you must file for an Adjustment of Status through your U.S. Citizen Spouse.
  • The AOS process for a spouse of a U.S. Citizen permits an application for permanent residence (“green card”) without the undocumented spouse needing to return to their home country.

There are risks of traveling with Advance Parole as a DACA Recipient. Make sure you consult with one of our experienced immigration attorneys for an analysis of whether you should attempt to apply for Advance Parole and the risks of departure. If you want to take this route or have any questions about this, contact one of our immigration attorneys in San Jose, San Francisco and Pasadena, California for more information. Call us at 408-293-2026 or e-mail us at gjack@mj-law.com.