Dreamers
As many of you are aware, President Obama and the Department of Homeland Security (DHS) created the Deferred Action for Childhood Arrivals (DACA) program to assist individuals who were brought illegally into the United States as children by their parents. Since Congress has refused over the past 10 years to provide any benefits or protection to these children, President Obama issued an Executive Order creating the DACA program which ”registers” each of these individuals and provides work authorization and limited travel authorization. Interestingly, although anti-immigration groups have protested against this program from its inception, claiming that it is some type of “amnesty”, they fail to realize that the “action” which is “deferred” is deportation. In other words, each of these individuals who register under the program will be placed in deportation proceedings as soon as the program is terminated.
The primary goal of the DACA program has been to provide work authorization to these children who were brought illegally into the U.S. Most of these children have spent almost their entire lives in the U.S. and graduated from college but still have no legal status nor any right to work. The DACA program solves this particular problem for most of the “Dreamers” who fall in this category.
However, the DACA program has also produced an unintended benefit which can be incredibly helpful to certain DACA applicants. In order to understand this benefit, it is important to understand the basic procedure available for any individual to obtain permanent residence in the U.S.
In most family cases, such as a U.S. citizen who marries a foreign national, there must be an interview at the end of the case at which time the permanent residence is granted. For individuals in the U.S., we normally go through a process called adjustment of status (AOS). If the individual is outside the U.S., we go through a process called “consular processing”. In the first case, AOS, the interview takes place with the Immigration Service in the U.S. In the second case, the interview takes place at the U.S. Consulate in the beneficiary’s country of citizenship.
In 1996 Congress created the so-called 10 year and 3 year “bars”. These bars prevent people who have entered the United States illegally from returning to the U.S. for a period of 10 years or three years depending on how long they were “unlawfully present” in the U.S. prior to their departure from the U.S. Furthermore, in order to be eligible for adjustment of status and avoid these “bars”, the applicant must have either been inspected and admitted to the U.S. legally or have been “paroled”. If the person was not inspected or paroled, they must attend their interview at the U.S. Consulate in their home country.
The procedures outlined above create a problem for the “Dreamers”. Since they did not enter the United States legally, they are not eligible to adjust status in the U.S. and therefore their permanent resident interview must take place in their home country at the U.S. Consulate. However, since they have been “unlawfully present” in the U.S. for more than one year, and in fact for many years, when they leave the United States to attend their interview at the consulate they will be barred from returning for a period of ten years. Although there is a waiver available in some cases, it is difficult to obtain approval for most “Dreamers”. In effect, a DACA applicant who marries a U.S. citizen cannot adjust status in the U.S. because they entered illegally and they do not want to go to an interview in their own country since they would be barred from returning for 10 years. Incidentally, it is this “catch-22” which traps approximately 11 million people in the U.S. who have options to legalize their status but for the 10 year bar.
The unintended benefit of the DACA program is limited to a particular type of case but it is a tremendous benefit for those cases. A “Dreamer” who marries a U.S. citizen may be eligible to adjust status in the U.S., and not have to go to an interview at the U.S. consulate and trigger the 10 year bar, even though they entered the United States illegally. This is possible because the DACA program also provides for travel authorization in addition to work authorization. The travel authorization is called “advance parole” and if the “Dreamer” travels outside the U.S. and returns with this “advance parole” they would be paroled into the U.S. Leaving aside the legal issues surrounding inspection, admission and parole status, the important point is that the adjustment of status part of the Immigration Act allows for adjustment of status in the U.S. if the person is inspected or paroled.
In effect, a DACA applicant would not only get work authorization but also the advance parole travel authorization, leave the United States and be paroled back into the country. Because of an important Board of Immigration Appeals case from 2012 and the benefits of parolee status, it appears that married “Dreamers” will be able to obtain permanent residence in the U.S. through adjustment of status if they first obtain advance parole, depart from the U.S. and are allowed back in as a parolee.
There are still some unanswered questions regarding this process but to date the Immigration Service has confirmed that it will follow the 2012 BIA decision as well as §245 of the Immigration Act which allows parolees to adjust status. Also note that this provision would also apply to a “Dreamer” who is under the age of 21 and has a U.S. citizen parent. That individual would also be allowed to interview in the United States and be granted adjustment of status without triggering the 10 year bar by having to go to the interview at the U.S. consulate.
If you know of a DACA applicant who is also married to a U.S. citizen, or has a U.S. citizen parent, it is important that they look into this benefit as quickly as possible. There is of course no guarantee that the DACA program will continue under the Obama administration and there is even less chance it will continue if there is a Republican elected President in 2016.
