On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum rescinding Deferred Action for Childhood Arrivals (DACA). Per the terms set forth in the memorandum at the time, USCIS no longer accepted initial applications for DACA.
Some applicants were eligible to renew their DACA applications before October 5 and might have continued to receive DACA benefits as late as September 2020. For many, hopes may lie in the American Dream and Promise Act of 2021, which currently sits in the Senate awaiting approval.
An Update on DACA Statuses for 2021
With the onset of the Biden Administration, new hopes for DACA recipients have emerged. President Biden initiated a Memorandum for Preserving and Fortifying DACA soon after entering office in January 2021. The presidential action has several effects:
- It allows the Secretary of Homeland Security to take necessary lawful steps to preserve DACA
- It does not create a legal right for citizenship or lawsuits against the government
- It affirms support for immigrants brought into the U.S. as children
There is also additional hope in new legislation proposed by Senators Dick Durbin and Lindsey Graham, called the DACA Dream Act. If passed, the proposal would allow DACA recipients to apply for a green card (legal permanent residency) and eventually citizenship.
However, if your DACA status expired in the interim, you’ll need to know what to do next. While DACA is back in effect, thanks to President Biden, there may be other opportunities to solidify your status as an American citizen.
Legal Options After DACA Status Expires
If your DACA status has expired, do not panic. There are several options you may be able to pursue in order to remain in the U.S. legally and safely. These two options deal with either the immigration status of your current family members or your employment status and job opportunities.
Renew Your DACA Status
Reverting to the terms of DACA prior to the DHS memorandum rescinding its benefits on September 5, 2017, and based on the court-ordered decision on December 4, 2020, USCIS is once again accepting DACA renewal requests.
If you choose not to obtain a green card or go through the naturalization process, you can still obtain DACA benefits by renewing your status through Form I-821-D.
Getting a Green Card Through Family Sponsorship
As a first step, all DACA recipients should be investigating their potential eligibility for a family-based green card. Recipients with a U.S. citizen parent, spouse, adult child, or sibling are eligible for sponsorship, as are recipients with a green card holder spouse. In addition, unmarried recipients with a green card holder parent are also eligible.
For recipients with a qualifying relative, the green card application process will vary based on how he or she entered the U.S. and the status and relationship of the family member who will be the sponsor.
There are generally two ways that a DACA recipient might have entered the U.S.: on a visa that later expired or without a visa by crossing the border illegally. There are significant immigration consequences attached to these two different ways that a DACA recipient might have become “undocumented.”
DACA recipients who “overstayed” a valid visa are fast-tracked in the green card process if they are sponsored by a U.S. citizen spouse, or adult child (over 21). If they’re unmarried and under 21, they can also be fast-tracked if they’re sponsored by a U.S. citizen parent. “Fast-tracking” can mean that an applicant receives his green card in as little as a year.
DACA applicants who overstayed their visas can also apply for a green card through the sponsorship of a permanent resident spouse, although this process will take longer. An unmarried DACA recipient might also be eligible if their parent is a green card holder, and can expect to wait several years to finish the process.
Getting a Green Card Through Employment Sponsorship
Getting a green card through employment sponsorship sounds like a great option, but it presents a lot of challenges. DACA recipients with employers who are willing to sponsor them should know:
- The process generally involves testing the labor market to identify any U.S. workers willing and able to do the job.
- The process can take years, with absolutely no protection (or authorization to work) while it is pending.
Difficulties for Some DACA Applicants
DACA applicants who are not eligible for fast-track processing face unique obstacles, in that they are not eligible for work authorization or protection from deportation while they wait for a “visa number” to become available to complete the green card process.
For DACA recipients who entered illegally (without a visa) the options are even more difficult. Although applicants can still be sponsored by a qualifying family member, they can’t actually apply for the green card unless they can prove to the government that returning to their home country would cause extreme hardship to a U.S. citizen spouse or parent.
NOTE: There are many good reasons to move forward with the green card process by filing an I-130 process as soon as possible. Even if the DACA recipient is not eligible to apply for the green card without a waiver, it’s generally a good idea to establish that the applicant is eligible for sponsorship. Applicants who want to learn more about their eligibility for a green card should contact an experienced immigration attorney.
Other Options After DACA Status Expires
Many DACA recipients have options beyond the green card path. U Visas, VAWA Petitions, and Asylum applications are all options worth exploring for DACA applicants who have been victims of persecution or violence.
Finally, DACA recipients who have been in the U.S. for at least 10 continuous years might be eligible for a form of relief known as “Cancellation of Removal” on the basis of exceptional and extremely unusual hardship to a U.S. citizen or green card holder’s spouse, parent, or child.
Strategies for Moving Forward After DACA Status Expires
DACA recipients who are eligible to start the green card process should do so as soon as possible. Those who are not eligible for a “fast track” green card, either because they entered the U.S. without a visa or because they are not being sponsored by a qualifying U.S. citizen family member, should at least start the process by filing an I-130 petition.
In cases where the DACA recipient can’t get a fast-track green card or has no sponsor available, consider all available options by reaching out to a community-based organization or experienced immigration attorney who can discuss all available options.
How FileRight Can Help
The United States Citizenship and Immigration Services process is notoriously convoluted and difficult to properly navigate. When so much hangs in the balance, you want to ensure that you have the help you need to get the result you want.
FileRight can help you apply for a green card through a family member, offers immigration solutions to cut down on confusion, and provides attorney review to ensure that any mistakes are corrected before you send your application to the government. Download your application forms today and get started securing your future.
