On January 20, 2021 the Biden Harris Administration, in its first day, re-instated the DACA program [1] as it had existed on September 5, 2017, including the eligibility to obtain permission to travel outside the United States and lawfully return.
Under the current Immigration Law [2] when an individual is inspected by an Immigration Officer and is “paroled” (permitted to enter) into the U.S., that individual may be eligible to apply for Legal Permanent Resident status [3] in the U.S.
This is particularly true for individuals who qualify as “Immediate Relatives” of a U.S. Citizen. Immediate Relatives [4] for U.S. immigration purposes are:
- Spouses;
- Unmarried children under 21 years of age; or
- A Parent of a U.S. Citizen (if the U.S. citizen is 21 years of age or older).
There are many people in the U.S. who are not eligible to file for Legal Permanent Resident status through their family members simply because they did not enter the United States with permission. However, if they were to travel and return to the U.S. with Advance Parole, they would be able to apply for their Green Card inside the U.S.
The DACA Program [5] allows USCIS to authorize foreign travel with an I-131 Application for Advance Parole [6] under three different circumstances:
- Employment Purposes – including meetings, conferences or trainings;
- Educational Purposes – including a semester-abroad program through a college or high school, or to conduct academic research; or
- Humanitarian Purposes – including travel to obtain medical treatment, to aid a relative with a serious medical condition, or to attend a funeral of a family member.
Even if a person does not have a family member to sponsor them, Advance Parole, can lead to Resident Status if the person has an employer to sponsor them, in certain situations. A common situation in which travel through the DACA program would allow a person to apply for Employment-Based Residency, is when the person applied for DACA before they were 18 and a half years old. Unlawful presence (being in the U.S. without permission from Immigration) in the U.S. can prevent a person from applying for residency through an employer, but a child under the age of 18 generally cannot have unlawful presence according to Section 212(a)(9)(B)(iii) of the Immigration & Nationality Act [7] and since the unlawful presence penalty applies only after 180 days without lawful status, a person who applied for DACA before they were 18.5 would generally be eligible for Employment-Based Residency.
Family-Based Residency [8] and Employment-Based Residency [9] are just two of the ways that persons with DACA, who did not previously enter the U.S. with permission, can use Advance Parole to obtain Legal Permanent Resident Status at this time.
There may be a number of possibilities for individuals who are part of the DACA program in the future. President Biden prepared a proposal for Congress to consider what would create a path to residency and citizenship for DACA program participants that has been made part of bills in both the House of Representatives [10] and the Senate [11] .
Therefore, it is important for people to act: If you are eligible for DACA, apply now to obtain it, if you have or have had DACA be sure to renew it, and if you have family or employment residency opportunities and you need to travel to be eligible, then apply for the Advance Parole permission to travel and be readmitted into the U.S. Our Boston immigration lawyers [12] at FitzGerald Law Company have a successful track record helping immigrants with their DACA applications and other immigration, criminal [13]and personal injury [14] matters. Call today and schedule your initial consultation at (617) 303-2600 or schedule your appointment online [15].