Mahaprasad Nanda

Yes, DACA recipients are eligible for marriage green cards. As long as you’re married to a U.S. citizen or a lawful permanent resident (green card holder), you can apply for a green card as a DACA recipient. The application process will differ slightly depending on your spouse’s immigration status and whether you came into the United States lawfully or unlawfully.

For DACA recipients who are married to U.S. citizens, your green card application process depends on whether you entered the U.S. legally. You can apply for a green card from inside the United States only if you entered the United States lawfully. On the other hand, if you entered the United States unlawfully, you’ll have to apply from your country of origin. This section explains both scenarios.

If You Entered the U.S. Lawfully

Generally, lawful entry is a requirement to get permanent resident status. There are two ways to enter the United States lawfully. One is to enter with inspection, which means you enter with a valid visa and get inspected by a U.S. Customs and Border Protection (CBP) officer. The other way is through the Visa Waiver Program.

Some DACA recipients entered the U.S. lawfully and then overstayed their visa expiry date, becoming undocumented. If a DACA recipient became undocumented by overstaying a valid visa, they can still satisfy the lawful entry requirement as long as they haven’t left the United States since they first entered lawfully. If this is you and you’re married to a U.S. citizen, you will be following the same adjustment of status application process as other marriage green card applicants.

If You Entered the U.S Unlawfully

However, if you entered the United States unlawfully — that is without a valid visa or an approved visa waiver, and without inspection from U.S. Customs and Border Patrol — you can still apply for a marriage green card. But the process is more complicated. You have to apply from outside the United States. And you'll have to meet the legal entry requirement before applying.

You Obtained Advance Parole

One way to meet the legal entry requirement is by applying for Advance Parole. Advance Parole gives DACA recipients permission to return to the United States after traveling abroad for humanitarian, educational, or employment purposes. When you successfully re-enter the United States using a pre-approved Advance Parole travel document, you have entered lawfully.

You Applied for DACA Before You Turned 18

If you applied for DACA status before you turned 18 or within 180 days of your 18th birthday, you can meet the legal entry requirement by applying from a U.S. embassy or consulate in your country of origin. This process of applying from abroad is called consular processing. If your marriage green card application is approved, you will return to the U.S. as a lawful permanent resident.

You Applied for DACA More Than 180 Days After You Turned 18

If you applied for DACA more than 180 days after your 18th birthday and have never traveled on Advance Parole, the process gets more complicated.

The U.S. government imposes “re-entry bars” on anyone who lived in the United States as an undocumented immigrant for 180 days or more. If you’ve been in the United States for 180 to 365 days without legal status, you’ll face a three year bar from re-entering the United States. If you have more than one year of unlawful presence, you’ll face a 10-year bar. Without a waiver (described below), you’d have to wait outside the United States until your re-entry bar expires before applying for a green card.

The I-601A Provisional Waiver

You can avoid the three-year bar or 10-year bar by getting a Provisional Unlawful Presence Waiver. To apply for this waiver, you must submit Form I-601A to U.S. Citizenship and Immigration Services (USCIS). In your application, you have to show that you’ll face extreme hardship if you can’t re-enter the United States and explain why you and your spouse can’t live together in your home country until the bar expires. The waiver application is complex, and you will likely need an experienced immigration attorney’s help. 

If you’ve entered the United States unlawfully more than once, U.S. immigration law will bar you permanently from re-entering the country. Unfortunately, you cannot apply for a waiver to undo this permanent bar.

DACA recipients who are married to green card holders can also get a marriage green card. But spouses of U.S. permanent residents can only apply from outside the United States using consular processing. That holds true whether you first entered the U.S. lawfully or unlawfully. Your application process may also be longer depending on when you applied for DACA and whether you are subject to re-entry bars from the U.S. government as a result.

If You Applied for DACA Before Turning 18 or Within 180 Days of Turning 18

If you applied for DACA before turning 18 or within 180 days of your 18th birthday, you can apply for a marriage green card from your home country — either at the U.S. embassy or a U.S. consulate. You can’t apply for a green card from the U.S. This process takes longer if your spouse is a green card holder because you’ll have to wait for a visa to become available in the visa bulletin before filing. 

If You Applied for DACA More Than 180 Days After Turning 18

If you applied to the DACA program more than 180 days after turning 18, USCIS will conclude that from day 181 to the date when you applied, you lived in the United States without legal status. This has implications for your application process.

Under the Immigration and Nationality Act (INA), the basis of U.S. immigration law, an adult who has lived in the United States. without legal status can be barred from re-entering the country if they ever leave. It’s usually a three-year bar if you lived here without legal status for between 180 and 365 days. And it’s a 10-year bar if you lived here for more than one year without legal status.

However, you can apply for a Provisional Unlawful Presence Waiver by filing Form I-601A with the help of an experienced immigration attorney. If your waiver application is approved, you can return to the United States without having to wait for your bar to end.

If You Entered the United States Unlawfully More Than Once

If you entered the United States unlawfully more than one time, you could face a permanent bar from ever returning to this country, even if you’re an immediate relative of a U.S. permanent resident. Unfortunately, the Form I-601 inadmissibility waiver isn’t available to immigrants who face the permanent bar.

The amount of time it takes for you to receive your green card depends on the type of green card application process you follow. The first step to apply for a marriage green card is for your U.S. citizen or permanent resident spouse to file Form I-130 with U.S. Citizenship and Immigration Services (USCIS). Form I-130 seeks permission from the U.S. government for you to apply for a marriage green card. There are additional forms to file as well: Form I-485 if you’re applying from inside the United States or Form DS-260 if you’re applying from your home country.

If you want to adjust status from inside the United States and your spouse is a U.S. citizen, you can file Form I-485 at the same time as your Form I-130. The entire process takes 8-14 months. But if your spouse is a permanent resident, you’ll have to wait until USCIS approves your I-130 request before you can file Form I-485. Usually, USCIS takes 8-12 months to process I-130 filings and 11-26 months to process I-485 filings.

If you’re applying from abroad, you’ll file Form DS-260 with the State Department’s National Visa Center (NVC) after your Form I-130 filing is approved. It usually takes an extra 4-8 months for the Form DS-260 to be approved. In addition, it typically takes 4-6 months for a Form I-601A waiver application to be processed if you needed to apply to cure an unlawful entry.

Disclaimer:

The information presented in this article is intended for academic and marketing purposes only and should not be construed as legal advice. It is essential to consult with a qualified immigration attorney or legal professional for accurate and up-to-date legal counsel specific to your individual circumstances. Laws and regulations are subject to change, and professional guidance is crucial to ensure compliance.

OpenSphere is a technology company and does not hold itself out as a law firm. It operates independently and is not affiliated with or endorsed by the U.S. Citizenship and Immigration Services (USCIS) or any government entity.OpenSphere, its authors, and agents do not warrant the accuracy or real-world applicability of the information herein, nor are they liable for any damages arising from reliance on this information.