daca green card loophole

DACA Green Card Loophole Allows 40,000 To Become LPR

For those who were brought to the U.S. as children, the fear of deportation is fresh on their minds now that Trump is on office. Just last fall, Trump closed the DACA green card loophole that allowed over 40,000 undocumented childhood arrivals to obtain their green cards legally.

Plus, over 1,000 of these applicants went on to get U.S. citizenship after receiving DACA.

I’m sure you’re wondering: “Is there still a way to get a green card if you temporarily have DACA protection?” The answer to this is no. Unfortunately, the Trump administration has removed this lucrative loophole for green card eligibility.

Case Example:

Marissa entered the country with her parents at 3 years old. She stayed in the U.S. and attended school all the way through high school. She decided to start working before deciding to go to college but she found out that she didn’t have a SSN or legal status.

Marissa wanted to visit her grandmother in Mexico so she decided to apply for advanced parole (Form I-131). After 90 days, she is approved and authorized to leave the country and re-enter on a travel permit.

Months later, she realized that she can apply for a green card because she re-entered the U.S. legally on a travel permit. She contacts a lawyer to confirm and applies to adjust here status. She successfully gets approved for the green card using the loophole in the law.

What Is The DACA Green Card Loophole?

Before we go into what the loophole is, let’s learn more about what DACA is and why president Trump wants to end it.

Nearly 800,000 young undocumented residents are currently protected under the Obama-era legislation. Obama signed the executive order back in 2012 to allow youth that were brought to the U.S. protection against immediate deportation.

But, in September 2017 Trump announced that he was going to end DACA protection for young undocumented resident int he U.S.

When DACA was signed, individuals were able to request DACA status if they were under the age of 31 on June 15th 2012 and came to the U.S. before turning 16.

Alright, now that we know a little about what DACA is, let’s go over the green card loophole and how some dreamers took advantage of this option to become permanent residents.

Step 1: Qualifying For Adjustment of Status

To be eligible for a green card through adjustment of status, you must have a qualifying circumstance such as marriage to a U.S. citizen or an employer willing to sponsor you for a green card.

It won’t be that easy though. USCIS will scrutinize your relationship to determine whether it is genuine or for the purpose of obtaining a green card.

Step 2: Legal Entry Into The United States

Next, you have to prove that you entered the country legally. This can be on any type of visa (even if you overstayed the visa). The important part is that you entered the country with permission from CBP.

The problem that all undocumented residents face is that they can’t prove they entered the country legally (with inspection). However, there is an option to apply for the I-601A waiver of the unlawful presence grounds of inadmissibility but it will be long and complicated.

Step 3: Financial Sponsor for the I-864

Finally, you must have a financial sponsor that will guarantee you will not become a public charge. This just means that someone will else will provide for you financially so you don’t apply for government assistance.

USCIS only wants to approve green cards for those who will not rely of government welfare to sustain themselves. If your main sponsor (the petitioner) doesn’t make enough money, you may be able to use a joint sponsor to meet the income requirement.

DACA phase out

DACA And Applying For Advanced Parole

Okay, so how did 40,000 DACA recipients become permanent residents using a backdoor loophole? When I  learned of how this was done, I was not only impressed but not surprised.

So, this is how it worked.

  1. Lisa applies for advanced parole (form I-131) to allow them to leave the U.S. and re-enter.
  2. USCIS approves advanced parole because the applicant has legal status (DACA).
  3. With advanced parole in hand, Lisa leaves the U.S. and re-enter again legally.
  4. Lisa later applies for adjustment of status based on marriage to a U.S. citizen.
  5. Since Lisa re-entered the U.S. legally with a re-entry permit, she has proven she entered the country with permission.
  6. Lisa’s I-485 and I-130 are approved and she gets her green card in the mail.

As you can see form the example above, the only thing that helped Lisa apply and get approved for a green card was that she was able to enter the U.S. legally.

I’m surprised that no one in the Obama administration knew about this green card loophole. If they actually reviewed immigration law, it would be crystal clear!

DACA And Legal Entry Into The U.S.

The most important aspect of successfully applying for a green card is how you initially entered the United States. If you entered illegally without inspection, it’s nearly impossible to overcome this.

So, why is legal entry into the U.S. so important?

It shows that came into the U.S. the right way and that you respected U.S. immigration law. What’s interesting is that even if you entered the U.S. with a valid visa but then overstayed for years, you have a better chance of adjusting status compared to someone who illegally crossed the border.

This is why so many undocumented residents who are married to U.S. citizens can’t adjust status to become permanent residents.

It’s really sad if you think about it. These are people who have been here for decades and have American citizen children but face risk of deportation if they are found out.

Case Example:

Morris entered the U.S. at age 13 with his parents from Mexico. He’s been in the U.S. for 12 years and has successfully apply for DACA protection. He meets and marries his girlfriend in college and decides to apply to adjust his status based on his new marriage.

The I-130 is approved but the I-485 adjustment of status is denied because he can’t prove he entered the country legally. Even with a waiver for his unlawful presence, Morris would need to leave the country and risk a 3 or 10 year bar from the United States.

Final Thoughts On DACA Green Card Loophole

Although the DACA green card loophole has been shut and is no longer available for new applicants, there may be other options for dreamers to legalize.

Advanced parole was around long before DACA legislation was enacted. But, for many undocumented people who qualified for DACA, it was a great path to permanent residence.

Of the 40,000 dreamers who went on to become green card holder, more than 1,000 were also able to naturalize and become U.S. citizens.

What’s not known at the moment is whether the rest of the 39,000 DACA green card holders will be allowed to continue to naturalize once they are eligible to apply. I doubt that the Trump administration will revoke green cards that were issued to DACA recipients using the advanced parole loophole.

If you currently have DACA protection and are worried what the changes in the laws will mean for you, only time will tell. I know that it will be difficult for Trump to completely phase out the DACA program without someone else in place.

Many people have called for a 10 year path to citizenship for dreamers. This would probably be the best solution for both young immigrants wanting to stay in the U.S. and the U.S. economy as a whole. You can say I’m biased, but I truly believe that immigration benefits the country greatly.

I also understand that this country has borders for a reason. We need to be sure that we are only allowing people into this country that will be productive and good moral individuals. This can only be done if everyone applies to get into the country.

Are you a DACA recipient that received a green card through the advanced parole loophole? Let me know in the comments below.

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