DACA holders may be able escape the unlawful entry bar to adjustment using advance parole
On June 15, 2012, President Barack Obama announced in the White House Rose Garden that young people who entered the United States illegally before age 16 and who met certain requirements would soon be eligible for a type of temporary permission to remain in the United States called deferred action. Department of Homeland Security would give qualifying applicants deferred action status and work authorization, which would allow successful applicants to obtain driver licenses, in-state college tuition and many other benefits... temporarily.
President Obama's directive was not an executive order. It was a change in policy implemented by the Department of Homeland Security. The Executive Branch has had the authority to parole aliens into the United States for emergent reasons in the national interest since the 1952 Immigration and Nationality Act (see section 212(d)(5) for the parole authority). Both President Eisenhower in 1956 and President Kennedy in the early 1960s used the parole authority to admit refugees before US immigration law had any refugee provisions. Later President Ford used it to admit Vietnamese refugees and President Carter for Cuban refugees during the Mariel boat lift. The Executive Branch's authority to issue work authorization since the 1986 Immigration Reform and Control Act.
Applicants are automatically disqualified if convicted of:
It is possible to qualify for DACA with otherwise disqualifying criminal history if the applicant can demonstrate exceptional circumstances. Exceptional circumstances are highly unusual and USCIS will very rarely grant DACA applications based on exceptional circumstances.
State immigration offense, traffic offenses including driving without a license and juvenile delinquency do not automatically disqualify a DACA applicant.
Expunged convictions do not automatically disqualify an applicant for DACA (see USCIS DACA Toolkit at page 25, and USCIS Stakeholder Meeting with Director Mayorkas November 19, 2012 at page 3).
DACA is an executive prerogative. The Department of Homeland Security's decision to grant or deny DACA is not reviewable by any court and the Department may in its discretion deny an application for any reason. The Department may deny a DACA application because the applicant has criminal convictions that do not automatically bar eligibility, but in its discretion, the Department believes that the convictions demonstrate that the applicant is a threat to public safety. This can include participation in criminal activity that did not result in a conviction and also gang membership.
Absences before June 15, 2007 do not affect DACA eligibility. Absences from the United States on or after June 15, 2007 and before August 15, 2012 disqualify a DACA applicant if a single absence was longer than 90 days, or cumulative absences were longer 180 days. Any absence from the United States on or after August 15, 2012 disqualiifies an applicant for DACA unless the applicant held both DACA and advance parole during the absence.
There are two reasons a person with deferred action might want advance parole: (1) to travel abroad for some reason, or (2) to obtain a lawful entry to the United States that permits adjustment of status.A foreign national who enters the United States without admission or parole is ineligible to adjust status unless an exception applies. When a foreign national enters the United States without permission or overstays an authorized period of stay and is over age 18, he accrues "unlawful presence." If an applicant accrues a single period of a year of unlawful presence or more than a year of cumulative unlawful presence and departs the United States, he is sujbect to a ten year bar to returning to the United States. If a foreign national with a year or more of unlawful presence departs and then illegally reenters the United States or attempts to do so, he is barred for life from obtaining family and employment-based immigration benefits.
A recent Board of Immigration Appeals case held that when an alien leaves the United States temporarily under a grant of advance parole, he does not depart from the United States for the purpose of the unlawful presence bars. Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), see also INA 212(a)(9)(B)(i)(II). And parole is a a type of entry that permits adjustment of status under INA 245(a). This means that some DACA-eligible aliens otherwise barred from adjustment of status, may adjust simply by obtaining DACA and advance parole, departing and then reentering the United States.
Obtaining DACA and advance parole, then departing and reentering the United States can cure a difficult to waive bar to adjusting status and the serious 10 year penalty, but it doesn't cure all of the problems. Other bars to adjusting status include having worked without authorization and being out of status. A person seeks to adjust status based on a petition filed by an immediate relative - a US citizen spouse, parent, or child age 21 or older - is exempt from these bars to adjust status. But other aliens who, for example, seek to adjust status based on a different family relationship or employment may be subject to separate bars to adjustment of status that reentry to the United States with parole does not cure.
A DACA applicant may obtain advance parole to travel abroad only for the following reasons:
Travel for vacation is not a valid reason. USCIS will only consider applications for advance parole after your application for DACA is approved. You may not submit an application for advance parole at the same time as a DACA application.
A DACA applicant contines accruing unlawful presence while the application is pending, but is not unlawfully present during the period of deferred action. A grant of DACA will not excuse previous periods of unlawful presence.