In the recent Department of Homeland Security v. Regents of the University of California (Jun. 18, 2020), the US Supreme Court partly rescinded the Trump Administration cancellation of Deferred Action for Childhood Arrivals (DACA). However, the common question, can DACA Holders use an Advanced Parole Entry (I-94) issued through the DACA in a subsequent Adjustment of Status based on Marriage to a US Citizen?
Basic Eligibility for Marriage-based Adjustment of Status
USCIS requires the following basic requirements:
- Marriage with love and not for the sole purpose to receive a Green Card
- A US Citizen or Lawful Permanent Resident Spouse
- A Legal Entry, Admission, or Parole
For many DACA, the “lawful entry” requirement is normally not met. Consular processing is generally the only possible immigration option where the Immigrant would have to attend a Green Card interview at the US Consulate or Embassy in there home country. For example, Mexican Citizens would have to attend a Consular Interview in Ciudad Juarez, Mexico.
The issue with Consular Processing and DACA, is that many individuals who have been without status in the US after the age of 18 for more than 180 or 360 days, would require an I-601A Waiver to remove the Inadmissibility Bar under INA 212(a)(9)(B)(I) or INA 212(a)(9)(B)(II).
Using Advanced Parole to provide a Lawful Entry Record (I-94)
For many years, U.S. Citizenship and Immigration Services (USCIS), have found that individuals who travel on advance parole satisfy the “inspected and … paroled” requirement of INA § 245(a) and are able to adjust their status to that of lawful permanent resident.
However, in 2019, USCIS cites INA §§ 304(c)(1)(A)(ii) and 304(c)(2)(b) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, 105 Stat 1733, 1749 (Dec. 12, 1991), as a way of denying Lawful Entries on Advanced Parole where the original “Immigrant Document” was received after an Illegal Entry. Put differently, USCIS can ignore the Advanced Parole I-94 and focus on the old Illegal Entry (EWI) in their Denial of Adjustment of Status. This USCIS Policy Change applied to TPS (Temporary Protected Status), however it is possible to apply to all Advanced Parole, including DACA Advanced Parole.
If you have questions regarding your Immigration Options, please contact our office to set up a consultation with our Immigration Attorney.
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