The Deferred Action for Childhood Arrivals (DACA) program is criticized for not providing DREAMers (individuals with DACA status) legal permanent residency. This policy only protects them from removal for 2 years at a time. But is there a way for certain eligible DREAMers to get around this restriction?
As a refresher, DACA was enacted via executive order in 2012 by then-President Obama. The policy protects immigrant youth who entered without authorization as minors. To qualify, applicants must meet certain requirements for age, residence, education, and criminal background. Qualifying individuals are then protected from removal and can apply to renew this protection every 2 years thereafter. They can also receive work authorization and advance parole. Advance parole is key here.
Advance parole travel documents are issued by United States Citizenship and Immigration Services (USCIS) and allow foreign nationals (FN) to leave and reenter the U.S. without a visa. Advance parole is often used when a FN has an application for legal status pending with USCIS but needs to leave the country for a compelling reason (family emergency, important business trip, etc.). The FN must apply for advance parole with USCIS who, upon approval, will dictate the exact time frame during which the FN can leave and return. It is important to note that advance parole does not guarantee re-entry into the U.S. FNs traveling on advance parole must still pass inspection by U.S. Customs and Border Protection (CBP) in order to re-enter.
DACA recipients can apply for advance parole for reasons related to education, employment, or urgent humanitarian matters. When a DREAMer leaves the U.S. and returns using advance parole, she has then been paroled into the U.S. By law, parolees can apply for legal permanent residency (a.k.a. a green card) if they otherwise qualify. FNs qualify by having a qualifying U.S. citizen or legal permanent resident family member or U.S. employer sponsor them. Therefore, DACA recipients who leave the U.S. on advance parole may be eligible for legal permanent residency upon their return if they have a family member (such as a U.S. citizen spouse) or employer to sponsor them.
This process is known as adjustment of status following parole. It is a remarkable way around the limited protections of DACA.
It is essential to note that rules about parole for FNs can change often. DREAMers must consult with an immigration attorney before leaving the U.S. on advance parole because there is always a risk that they may not be allowed back in the U.S. Traveling on advance parole must be considered very carefully because getting trapped outside the U.S. can severely compromise one’s immigration status.
Passage of legislation which is currently pending in the form of the 2021 American Dream and Promise Act would allow DREAMers to avoid this complex process all together. This Act would provide a pathway to citizenship for specific groups including FNs who entered the U.S. without authorization as children. In 2019 similar legislation was introduced and saw bipartisan support in the House; however, the Senate will likely need more convincing before this measure can be passed into law. DREAMers should keep a close eye on this legislation!
Written by, Alexandra Ciullo, Legal Intern