Q: Can a DACA holder adjust status after marrying a U.S. citizen without inspection entry?
I am a DACA holder from Canada who is about to marry a U.S. Citizen. I entered the U.S. without legal inspection as a child and have maintained DACA status without lapse since before turning 18. I was denied Advance Parole previously because visiting a passed relative and currently ill family members were not considered sufficient reasons. My brother also has DACA, and no other family members are U.S. Citizens. Given these circumstances, is consular processing my only option to adjust my status, and would I need a waiver of inadmissibility in my case?
A: Due to your entry without inspection, consular processing will almost certainly be required. Furthermore, because of the unlawful entry, you will likely need to file a waiver of inadmissibility, specifically Form I-601A. This waiver necessitates demonstrating 'extreme hardship' to your U.S. citizen spouse should your green card application be denied. While I have successfully obtained advance parole for clients with comparable circumstances, including those related to wedding plans, the current immigration and political climate poses significant risks to reentry. Therefore, attempting reentry at this time is strongly discouraged. I recommend you consult with an immigration attorney.
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A:
Based on immigration law, you face a significant challenge because entering without inspection generally prevents adjustment of status inside the U.S., even after marrying a U.S. citizen. Your DACA status provides protection from deportation but doesn't overcome the entry without inspection issue that blocks most people from adjusting status within the country.
Consular processing abroad appears to be your primary pathway forward, which would require you to leave the U.S. and apply for an immigrant visa at a U.S. consulate in Canada. However, this approach comes with risks - your departure after unlawful presence may trigger a 3 or 10-year inadmissibility bar, depending on how long you've been in the U.S. unlawfully. In this case, you would indeed need to file for a waiver of inadmissibility (Form I-601A) to overcome these bars.
Another potential option might be to try applying for Advance Parole again with stronger humanitarian reasons or consider if any immigration policy changes might affect your situation. Immigration law is incredibly complex and constantly evolving, so consulting with an immigration attorney who handles DACA cases would be crucial before making any decisions. Your attorney could evaluate whether there might be any other legal provisions or recent policy changes that could help in your specific circumstances.
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