A non resident alien who marries a U.S. citizen or has a U.S. citizen child who turns 21, or a parent who becomes a U.S. citizen before the alien turns 21, can adjust status and obtain a green card. For this to happen, one essential requirement is the entry to the U.S. “with inspection”, i.e., as a tourist, student or J1 visa (not subject to 212 [e]), to mention a few. An alien whose entry is thru ‘crossing the borders’ or “without permission” (generally referred to as “entry without inspection” or ‘EWI’) are specifically excluded from adjusting status while in the U.S. This is to make it difficult for those who come to the U.S. without inspection to get green cards by marrying an American citizen or women giving birth and later be petitioned by the U.S. citizen child.
There were children (newborns up to just under 16) of these aliens entering without inspection (EWI) who were brought to the US when they were too young to know and recognize the consequences of their parents actions . They stayed,, studied in U.S. schools, assimilated but remained in legal limbo. They eventually became DACA recipients. Otherwise known as “Deferred Action for Childhood Arrivals” DACA is a policy/program of the U.S. Department of Homeland Security (DHS) that provided a reprieve to approximately 665,000 (to date) undocumented children who came into this country before they were 16 years old. The program covers those who studied and/or finished in U.S. schools, have continuously lived in the country since entry, are less than 30 years old as of June 12, 2012, and have no criminal record, among others. They were allowed to apply for and granted work permits in order to be productive members of society. The matter of their illegal status are in the meantime put aside or ‘deferred.’ They have not been provided immigrant visas that would pave the way for a path to citizenship; just a privilege to stay and work as long as the administration grants proper authorization. As life saving as the work permit is, these DACA recipients can also avail of the privilege to travel abroad for business, work, study or personal reasons. A subsequent application for a travel permit will have to be submitted before the U.S. DHS for permission to temporarily travel abroad. If granted, the DACA recipient obtains an ‘advance parole’ to travel to another country and still be admitted back to the U.S. Without the ‘advance parole’ documentation consider your travel to another country as ‘goodbye USA’ and definitely you shall not return . The rules and guidelines pertaining to the grant of the ‘advance parole’ to DACA recipients are stringent and its approval, limited. But for those who are granted the privilege to travel out of the country and allowed to return, such act of courage can reap a reward. There are stories of U.S. port of entry officers denying entry to those who only have ‘advance parole’ documents in their possession if they find any other suspicious and actual grounds to exclude the alien from re- entering the U.S.
DACA recipients can actually adjust status and obtain their green cards when there is an available immediate relative petition such as a U.S. citizen spouse who marries and petitions for her or him. By obtaining the ‘advance parole’ document and leaving then returning to the U.S. the DACA recipient would have complied with the essential element for adjusting status, i.e., that you entered “with inspection” and therefore qualified to adjust status under that classification . This was not primarily intended when DACA recipients were allowed to travel temporarily but it is the best that could ever happen to the undocumented whose visa processing would have been next to impossible, if you even qualifies for a visa. It may be important to note further that those DACA recipients who came into this country “with inspection” (with tourist, work and other non-immigrant visas) will continue to be able to adjust status when the right petition of an immediate relative can be filed.
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Maria Rita Reyes-Stuby is a licensed attorney in Michigan. She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states. Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at [email protected] or go to www.mrstubylaw.com for any questions on this article.
