If you are a Deferred Action for Childhood Arrivals (DACA) recipient, there is no direct path built into the program to help you obtain permanent residency or U.S. citizenship. However, you will likely be able to obtain a marriage-based green card if you marry a permanent resident or U.S. citizen.
The paths to getting your marriage-based green card as a DACA recipient will vary depending on how you entered the United States and the immigration status of your spouse. These specifics can greatly impact the length of time and the complications related to obtaining a marriage-based green card.
Can DACA Recipients Marry?
Being a DACA recipient will not hinder your ability to marry. In fact, if you end up marrying a U.S. citizen or permanent resident, you will likely have a path to permanent residency and eventually U.S. citizenship that is otherwise unavailable to most DACA recipients.
However, you should be aware that these types of marriages are highly scrutinized. The U.S. government does not want people to marry for the purpose of obtaining permanent residency. If there is any suspicion that your marriage is not legitimate, your marriage will be thoroughly investigated. If deemed fraudulent, you could be barred from ever receiving a green card.
What Happens if a DACA Recipient Is Married to a U.S. Citizen?
If a DACA recipient marries a U.S. citizen, they will likely be able to obtain a marriage-based green card. However, the ease or difficulty of doing so will vary significantly depending on how you entered the United States and when you applied for DACA. Let’s review the various scenarios.
If You Originally Entered the U.S. Lawfully but Overstayed
If this is your situation, you will have the easiest time obtaining your marriage-based green card after marrying a United States citizen. There are no additional obstacles that stand between you and permanent residency if you originally entered the United States with a valid visa and inspection from a U.S. Customs and Border Protection (CBP) agent.
If you overstayed a lawful entry, your marriage-based green card application process will be no different than if you had lawful status in the country. You will not have to leave the country or apply for a special waiver of inadmissibility, regardless of when you first obtained DACA. The same situation applies if you entered the U.S. under the Visa Waiver Program.
This scenario is far easier than the other potential situations you could face. As long as you don’t leave the country in the meantime, you should be able to obtain your green card in a short time period with little difficulty.
If You Entered the U.S. Unlawfully and Obtain an Advance Parole Travel Document
While you will still likely have the possibility of obtaining a marriage-based green card under these circumstances, doing so will be far more complicated and likely take significantly longer. If you are able to obtain an advance parole travel document (travel permit), you may be able to leave the country, then return lawfully with inspection by a United States CBP agent.
If you take this path, you will be able to apply for your green card the same as if you had entered the country lawfully the first time.
If You Entered the U.S. Unlawfully and Applied for DACA Before Turning 18 or Within 180 Days After Turning 18
In this scenario, you will likely have to return to your country of origin to apply for your marriage-based green card. You can submit your application at the U.S. embassy or consulate, the same as anyone else living abroad and applying for a marriage-based green card related to their marriage to a United States citizen.
If You Entered the U.S. Unlawfully, Did Not Obtain a Travel Permit, and Applied for DACA More Than 180 Days After Turning 18
If this is your situation, you will have to leave the United States and apply for your green card at a U.S. embassy or consulate in your country of origin. However, unlike if you applied for DACA before 180 days had passed since you turned 18, you will face a bar from re-entering the country, which can be up to 10 years.
However, to avoid this additional delay, you may be able to file Form I-601A: Provisional Unlawful Presence Waiver.
To qualify for this waiver, you will have to prove to the United States Citizenship and Immigration (USCIS) that your spouse would face extreme hardship if you are unable to live together. You must also provide a strong argument for why you cannot live together in your country of origin.
If You Entered the U.S. Unlawfully on More Than One Occasion
This is the worst-case scenario, as you could face a potential permanent ban from re-entering the country, without the possibility of obtaining a waiver. This would leave you with no available path to getting a green card despite your marriage to a U.S. citizen.
What Happens if a DACA Recipient Is Married to a Permanent Resident?
Things are a little different if you are married to a permanent resident rather than a United States citizen. When married to a green card holder, there is no option for remaining in the United States while applying for permanent residency. It does not matter if you originally arrived in the U.S. lawfully or if you obtained a travel permit. You will still have to apply from abroad.
If You Applied for DACA Before Turning 18 or Within 180 Days After Turning 18
If you applied for DACA within this timeframe, you will likely need to return to your country of origin and submit your application for permanent residency at the U.S. embassy or consulate there. This is the same process you would take if living abroad and applying for a marriage-based green card with a permanent resident sponsor spouse.
However, it is essential to note that this process takes significantly longer than if you are applying with a U.S. citizen sponsor spouse. While there is no limit on the number of green cards available for those who are married to U.S. citizens, you will have to wait for a visa to become available if you are married to a permanent resident.
Once a green card is available in the visa bulletin, you can complete the application process in your country of origin and return to the United States as a permanent resident.
If You Applied for DACA More Than 180 Days After Turning 18
If you waited more than 180 days after turning 18 to apply for DACA, you will also have to leave the country and apply for residency at the U.S. embassy or consulate in your country of origin. However, instead of simply waiting for a visa to become available to complete your application, you will also face a bar from entering the United States for up to 10 years.
You may be able to avoid this penalty if you file Form I-601A: Provisional Unlawful Presence Waiver before leaving the United States. If approved, this waiver will allow you to leave the United States and re-enter without having to wait this additional time.
If You Entered the U.S. Unlawfully on More Than One Occasion
The potential penalty for this is the same if you are married to a permanent resident as it is for those married to U.S. citizens. Multiple unlawful entries into the country could result in a permanent ban from re-entering the United States. There is no chance of obtaining a waiver in this situation.
Get Help With Your Green Card Application Today
Qualifying to apply for a green card does not guarantee that you will receive one. While marrying a U.S. citizen or permanent resident typically gives an immigrant spouse the right to obtain a green card, there are other circumstances that could nullify your eligibility, including a conviction for certain crimes.
Even if nothing else bars you from applying, your application may still be denied or delayed if there are mistakes on the application. When applying for a marriage-based green card, your spouse must first submit Form I-130: Petition for Alien Relative. After this is approved, you can file your application for permanent residency.
If filing within the United States, you will use Form I-485: Adjustment of Status. If filing from abroad, you will need to file Form DS-260: Application for Immigrant Visa and Consular Processing, while your spouse will likely need to file Form I-864: Affidavit of Support. An immigration services company like FileRight can help ensure all forms get filed correctly.