DACA Recipient & Married to a US Citizen? You May Have Options

Since President Trump announced the end of DACA, current recipients are looking for alternative options. If you have married a US citizen, you may have options to consider. Many immigrants are aware that if they entered without a visa they are not able to obtain residency in the US through marriage. Rather, they must leave the country, and that presents a problem for many who then will be barred for reentry due to their unlawful presence in the US. However, there is a provisional waiver that many should seriously consider.



What is the Provisional Waiver?



For individuals who leave the US after having been in the US for more than a year out of status, there is a 10 year bar on reentry. For example, if a US citizen spouse does a petition for a noncitizen spouse who entered without inspection, that noncitizen spouse will have to return to their country of origin to complete the visa interview. However, upon leaving the country to attend the interview, the spouse would be barred 10 years due to unlawful presence. The provisional waiver waives the 10 year bar. Moreover, the noncitizen spouse can apply for the waiver and wait for the decision on the application while in the US. Thus, the noncitizen spouse does not leave for the visa interview until the waiver is approved and in hand.



How to get a Provisional Waiver Approved?



It is important to know that a provisional waiver is not guaranteed to be approved. As such, it is important to hire an attorney who knows the law well and understands what it takes to get the application approved. The applicant must show extreme hardship to the US citizen spouse if the waiver is not granted. USCIS (the federal immigration officials) consider four factors: health, education, finances, and special considerations.


              Health: Considerations include the health of the spouses, any children, as well as other family that the spouses may care for. USCIS will consider factors like the need for treatment and the availability of treatment abroad. Of course, this category also includes mental health illnesses, which could be negatively impacted by familial separation.


              Education: The government will consider whether family members are in school, the transferability of that education, special education needs and the ability of the US citizen spouse to obtain those needs abroad, the impact of interrupting education, as well as other factors.


              Finances: The government will consider how the US citizen spouse will be affected by a loss of income if the waiver is not approved. As such, couples will need to document all income and expenses.


              Special factors: This category includes everything else and can include the situation in applicant’s country of origin, applicant’s ties to the local community, loss from the sale of a business or other property, as well as any other factors.



What Does this mean for DACA?



If you are a DACA recipient and married to a US citizen, it is important to explore this option with an attorney. Not everyone will qualify and much depends on your individual immigration history. However, if you do qualify, it is important to start the process now. The first step is filing a petition, which takes 5 to 6 months to get approved. The second step is to file the provisional waiver, which can take 9-10 months for approval. The last step is consular processing in the applicant’s country of origin. In sum, it is not a short or easy route, but it is a route worth considering, because the result is permanent residency in the US; the coveted green card.



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