7/21/21 - The U.S. government is accepting all DACA requests, but only granting renewal requests. You can still submit a new DACA application to hold your place in line.
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Can A DACA Recipient Get A Green Card Through Marriage?

May 5, 2021
undocumented immigrant marries u.s. citizen

Summary

The Deferred Action for Childhood Arrivals (DACA) program doesn’t yet provide a pathway to lawful permanent residence. But if you’re a DACA recipient and you fall in love with and marry a U.S. citizen or permanent resident, you may be able to get a marriage green card. 

As a green card holder, you’ll have protection from deportation and long-term employment authorization, meaning you’ll never have to renew your work permit. Getting an immigrant visa is also the first step towards naturalization - the process of gaining U.S. citizenship. But to change your immigration status from DACA recipient to green card holder, you must satisfy certain eligibility requirements. 

Your green card eligibility will depend largely on how you entered the United States and if you’re married to a U.S. citizen or a permanent resident. This article explains the different ways that DACA recipients can qualify for marriage green cards and how long the process takes.

Overview

Are DACA Recipients Eligible for Marriage Green Cards?

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.

How Can DACA Recipients Get a Green Card if They Are Married to a U.S. Citizen?

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 an officer from U.S. Customs and Border Protection (CBP). 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 standard 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 the U.S. Customs and Border Patrol—you could 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 applying for Advance Parole. Advance Parole gives DACA recipients permission to return to the United States after travelling 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 travelled 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 ten-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 ten-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 Service (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 should only do it with an attorney’s help. So you should contact a local legal aid organization or a private immigration attorney to pursue this path.

Permanent Bar

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 can not apply for a waiver to undo this permanent bar.

How Can DACA Recipients Get a Green Card if They Are Married to a Green Card Holder?

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 the 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 reentering 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 ten-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.

How Long Does it Take For DACA Recipients to Get a Green Card?

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 the U.S. Citizenship and Immigration Service (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.

Conclusion

Applying for a marriage green card as a DACA recipient can be complicated. But working with a good immigration attorney can make it easier. If you can't afford attorney fees and don't want to handle your green card application alone, the non-profit ImmigrationHelp.org may be able to help. If you are eligible, you can use ImmigrationHelp.org to prepare your forms and have them reviewed for free. Click "Get Started" to see if ImmigrationHelp.org can help you.

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