As many of you know in 1996 Congress created the three year, ten year, and permanent “bars” which almost single handedly created the situation where 11 million people without status are “trapped” in the U.S. In effect, individuals who enter the United States without status or who lose their status after entry and who then depart from the U.S. are “barred” from returning for three years, ten years or perhaps “permanently”. Although this may sound like a good idea on its face, the real problem is that many people are eligible to obtain visas and legal status in the U.S. but must go to the U.S. consulate outside the U.S. in order to obtain the visa. By simply leaving the U.S. to attend that visa interview, one of these “bars” goes into effect.
There is one category of people who are able to obtain permanent residence in the U.S. without having to leave and attend an interview at the U.S. consulate. These people, referred to as “immediate relatives”, can avoid the “bars” by simply not leaving the U.S. and obtaining the permanent resident visa in the country.
However, in order to be a “immediate relative” the person must have entered the United States either legally or have been “paroled”. Even if the person later goes out of status, he or she is still eligible to be interviewed in the U.S. since they were initially admitted legally or paroled. Basically, this type of “immediate relative” case applies to a foreign national who marries a U.S. citizen. If the individual entered the United States without inspection the interview would have to take place outside the U.S. at a U.S. consulate. If the person entered the U.S. and was paroled, and then went out of status, they would still be eligible to be interviewed in the U.S. For this reason, it is incredibly important to determine whether or not an individual fits in the “immediate relative” category and whether or not they entered the U.S. legally or were paroled.
For the vast majority of DACA recipients, entry into the U.S. was without inspection. Based on this, if the foreign national who received deferred action later marries an American citizen, he or she would still have to go to an interview at the U.S. consulate outside the U.S. and be subject to the bars since they did not enter the U.S. legally or with parole.
However, one of the little known benefits of the DACA program is that the recipient may be eligible to travel to their home country in certain limited circumstances. In order to travel, the foreign national must apply for “advance parole” and be approved by the Immigration Service prior to traveling. However, if the advance parole is approved and the person travels and returns to the U.S., they will be “paroled” into the U.S. and therefore would be eligible to be interviewed in the U.S. if they are married to a U.S. citizen.
Two things are important about this process. First, the trip outside the United States using advance parole is not considered to be a “departure” from the U.S. and therefore the “bars” are not triggered. Secondly, since the individual will be “paroled” back into the U.S., he or she would then be eligible for adjustment of status in the U.S. if married to a U.S. citizen or if under the age of 21, unmarried and one of his or her parents is a U.S. citizen. If you know of anyone who fits into these categories, it is important that they consult an immigration attorney immediately. It is unclear how long the DACA program will be available and more importantly how long “advance parole” will be available for individuals in the DACA program. This development may be a very important benefit to a select few individuals but they must take advantage of it immediately.