The U.S. Supreme Court is weighing whether to cancel DACA and a decision is expected this spring or early summer. DACA recipients are encouraged to evaluate whether they would be eligible for an employment-based green card. While many DACA recipients may not be eligible because of the ways that our immigration laws are written, there are 3 categories of DACA recipients who may be eligible and should explore the possibility of getting a green card through their employer.
Why can’t every DACA beneficiary benefit from an employment-based green card process?
Unfortunately, many DACA recipients are not eligible for an employment-based green card because the Immigration & Nationality Act (INA), the set of laws that govern who can qualify for which immigration benefits, says that only certain individuals are eligible to file for an adjustment of status (green card) application in the U.S. and generally prohibits from filing those who have previously accepted unauthorized employment, who are in unlawful immigration status on the date of filing the application, or who have failed to maintain continuously lawful status in the US since the last admission. While there are some exceptions, they typically don’t apply to DACA recipients because DACA is not a status and many DACA recipients entered the U.S. without inspection (EWI).
In the alternative, the INA also creates a process of obtaining a green card through a U.S. Consulate abroad, typically in the person’s country of birth, but many DACA recipients cannot proceed with this either because of the 3 or 10 year bar. The INA states that a person who entered without inspection (EWI) or overstayed their visa begins to accrue unlawful presence when they turn 18. If after turning 18, the person has more than 6 months but less than 1 year of unlawful presence, and they depart the U.S. for their consular interview, the person will trigger a 3 year bar on returning to the U.S. If the person has more than 1 year of unlawful presence after they turn 18, and departs the U.S. for their consular interview, the person will trigger a 10 year bar on returning to the U.S. Please note that DACA approval stops the clock for unlawful presence, meaning unlawful presence does not count while DACA is valid.
Meaning, many DACA recipients are NOT eligible to file for their green card in the U.S., and cannot leave the U.S. to pursue a green card through consular processing because they’ll trigger a 3 or 10 year bar on readmission.
So which DACA beneficiaries will qualify for an employment-based green card?
Fortunately, there are 3 main categories of DACA recipients who may nevertheless benefit from an employment-based green card.
- 1. DACA Beneficiaries Who are Eligible for 245(i)
INA 245(i) permits certain individuals to file a green card in the US, and to avoid consular processing and triggering the 3 or 10 year bar, if the individual entered the U.S. without inspection (EWI) or otherwise violated the terms of their status. To qualify, someone must have filed an immigrant petition (I-130 or I-140) or labor certification (Form ETA-750) for them, their spouse, or their parent by April 31, 2001. Since DACA recipients are mostly young, it’s unlikely that someone would have sponsored them directly by that date, but it’s possible that someone would have sponsored their spouse or parent. It’s important to talk to your spouse and parents to discuss their own immigration history and determine if anyone ever sponsored them, regardless of whether or not they ultimately received their green card through such sponsorship. So long as the sponsorship was “properly filed” and “approvable when filed,” along with other requirements, the DACA beneficiary may nevertheless qualify for 245(i) even if the green card process was later abandoned or even denied.
2. DACA Beneficiaries Who Have Less Than 6 Months of Unlawful Presence After Turning 18
Individuals who are not eligible for 245(i) must consular process their green card at the U.S. Consulate abroad, but will trigger a 3 or 10 year bar on returning to the U.S. if they have more than 6 months of unlawful presence in the U.S. This means that those who have less than 6 months of unlawful presence in the U.S. after their 18th birthday do not trigger a 3 or 10 year bar and are not prohibited from returning to the U.S. after attending their consular interview abroad.
This means that those who got DACA before they turned 18 and have timely renewed it since may not have 6 months or more of unlawful presence. Periods of time with DACA approval does not count as having unlawful presence, but the time that a DACA is pending may count as unlawful presence if there are gaps between approvals after the person’s 18th birthday. It’s important to point out though that in light of the fact that the U.S. Supreme Court may cancel DACA, there’s the possibility that the individual may accrue more unlawful presence in the near future after DACA is cancelled.
Finally, those individuals who entered the U.S. on a J-1, J-2, F-1 or F-2 visa as students and exchange visitors (or their children or spouse) were admitted to the U.S. for Duration of Status (D/S) which does not have a set expiration and does not generally accrue unlawful presence, assuming the person has not since changed their status to a different status (not counting DACA). In that case, if the person last entered in J or F status and did not change their status (except for DACA), they are also not accruing any unlawful presence and would not trigger a 3 or 10 year bar for consular processing.
3. DACA Beneficiaries Who Have a US Citizen or Permanent Resident Spouse or Parent and Qualify for a Waiver of the 3 or 10 Year Bar
Finally, individuals who have more than 6 months of unlawful presence after turning 18, and would trigger a 3 or 10 year bar upon departure, may still benefit from an employment-based green card process if they have a qualifying relative to waive the 3 or 10 year bar. The INA permits waiving a 3 or 10 year bar by demonstrating extreme hardship to certain family members in the U.S.:
- S. citizen or Permanent Resident (LPR) parent; OR
- S. citizen or Permanent Resident (LPR) spouse.
Practically speaking, a DACA recipient with a U.S. citizen spouse will likely proceed with a marriage-based case through the consulate and not pursue an employment-based case, which typically takes longer. But, those who only have a U.S. citizen or Permanent Resident (LPR) parent or Permanent Resident (LPR) spouse may still find it more beneficial to consider the employment-based option, which may be faster than the long preference-based family immigration system, which sometimes takes decades, depending on where the person was born. These individuals can be sponsored for their green card by their employer, but use their relative only for purposes of filing the waiver to waive the 3 or 10 year bar before departing the U.S. for their consular interview.
In summary, if you have DACA, you should consider an employment-based green card if:
- You are eligible for 245(i) because a family member or employer filed an I-130, I-140 or labor certification (Form ETA-750) for you, your parent or your spouse by April 30, 2001; OR
- You have not accrued more than 6 months of unlawful presence since turning 18 because you obtained your DACA before you turned 18 ½ and have maintained it continuously or with short gaps; OR
- You have not accrued more than 6 months of unlawful presence since turning 18 because you last entered the U.S. in J-1, J-2, F-1, or F-2 status and have not changed it since (not counting DACA); OR
- You have a U.S. citizen or Permanent Resident (LPR) parent or spouse, making you eligible for a waiver of the 3 or 10 year bar.
Please contact an experienced attorney at Minsky, McCormick & Hallagan, P.C. if you have DACA and would like to evaluate whether you are eligible for an employment-based green card, or if you are an employer with a DACA employee and worried about the possibility that DACA will be cancelled by the U.S. Supreme Court.