The DACA program is in trouble. DACA, which stands for Deferred Action for Childhood Arrivals, is a 2012 program for undocumented immigrants who were brought to the U.S. as children. With DACA, these children (now adults) can apply for a work authorization card, social security number, and international travel document.

Recently, lawsuits challenging the legality of DACA have the program hanging on by a thread. USCIS no longer approves initial (first-time) DACA applications – only renewal applications. The Biden administration has made efforts to protect the DACA program, but its fate nonetheless depends on what a court in Texas decides in the coming months.

It’s more important than ever for DACA recipients to legalize their immigration status, if possible. Here are five options.

1) Marriage with a U.S. citizen (you came to the U.S. with a visa)

If you were brought to the U.S. as a child using your own passport and visa, and you’re now married to an American citizen, you may be able to apply for a green card.

U.S. immigration law allows for people who overstayed their visas to apply for “adjustment of status” (a green card) if they eventually marry an American citizen, even if they have been undocumented for many years. Perhaps you overstayed your tourist visa as a child and then applied for DACA in your 20s. Even though you overstayed your visa, you will probably be fine. The key factor is that you came to the U.S. lawfully, with a visa. U.S. immigration law allows for people in this situation to “adjust status” to a green card holder based on their marriage, without leaving the U.S.

2) Marriage with a U.S. citizen (you came to the U.S. without a visa)

If you came to the U.S. without a visa (without a lawful entry), and you are married to an American citizen, it may still be possible to apply for and receive a green card. But, U.S. immigration laws make the process more challenging and stressful. USCIS will likely have your green card interview scheduled at a U.S. embassy in your home country, and you would have to leave the U.S. before becoming a permanent resident. How can you leave the U.S. safely and secure your green card?

First, you should find out how old you were when you applied for or received DACA for the first time. If you received DACA for the first time after you turned 18 ½, you could have problems by leaving the U.S. for your interview. Usually, when people leave the U.S. after being undocumented, they trigger what is called the 10-year re-entry bar, which means that they are not allowed to return to the U.S. for 10 years. This is a penalty for being in the U.S. without lawful immigration status. So, the immigration agencies schedule your green card interview abroad, knowing that you may not be allowed to return to the U.S. for 10 years.

Fortunately, you probably qualify for a waiver of this 10-year requirement, through what’s called the I-601a “provisional waiver of unlawful presence.” With the I-601a waiver, you can ask USCIS to provisionally forgive this 10-year requirement, while you are still in the U.S. The I-601a waiver requires you to show that your U.S. citizen spouse would suffer what’s called “extreme hardship” if you had to return to your home country. The “extreme hardship” to your U.S. citizen spouse can be emotional, financial, health-related, or based on some other compelling reason.

After USCIS approves your I-601a waiver, you have a good chance of being approved for your green card in your home country, without having to wait 10 years stuck abroad. Most people with approved I-601a waivers who attend their green card interviews abroad are back in the U.S. within a few weeks.

3) Your family (mom, dad, sibling, etc.) sponsors you

If you’re not married to a U.S. citizen, perhaps someone in your family could sponsor you for a green card. Family members who could potentially sponsor you are:

• Your brother or sister, if they are U.S. citizens at least 21 years of age
• Your parents, if they have a green card or are U.S. citizens

Keep in mind that the wait list for family petitions is generally many years. For example, if your U.S. citizen brother or sister sponsors you, the wait time could be 15 years or longer. If your permanent resident (green card holder) mom or dad sponsors you, the wait time is likely at least seven years.

At the end of those many years, USCIS will likely have your green card interview scheduled at the U.S. embassy in your home country. You will then likely need to file the I-601a waiver application, as mentioned above. Note that the I-601a waiver is only available if you have any of the following family relations:

• Permanent resident (green card holder) or U.S. citizen parent
• Permanent resident (green card holder) or U.S. citizen spouse

4) Your company sponsors you for a green card

If no one in your family can sponsor your green card, consider asking your employer to sponsor you. Many people receive their green cards through employment sponsorship, which means that your company files a green card petition for you. Your company needs to show that they cannot find any U.S. worker to do your job. The U.S. labor market is currently on fire, so it may be a good time to ask your company to sponsor you.

Unfortunately, even after USCIS approves your company’s green card petition for you, U.S. immigration laws will likely require that your interview is scheduled at the U.S. embassy in your home country. So, to avoid the 10-year penalty stuck abroad, you will likely need to file the I-601a waiver application before you leave.

5) Your company sponsors you for a temporary work visa

Besides green card sponsorship, your employer may also be able to file a temporary work visa application for you. An example of a temporary work visa is the H-1b professional visa. The H-1b visa would allow you to work for your company for up to six years in H-1b status, instead of in DACA status.

As noted above, you will likely need to attend your visa interview at the U.S. embassy in your home country. So you could be stuck abroad for 10 years unless you receive a waiver. However, when your employer sponsors you for a temporary work visa, you will not be able to file the I-601a waiver application. The I-601a waiver is only available when applying for a green card.

Instead, you should apply for a different waiver, called the 212(d)(3) waiver. This waiver is available for temporary visas, such as the H-1b. Whether you qualify for the 212(d)(3) waiver depends on many factors, such as how long you’ve been in the U.S., as well as your educational and professional qualifications. It will also depend on which U.S. embassy decides your case. Some embassies approve these waivers, while others do not. If you have connections with a federal politician in the U.S., like your senator or local House representative, consider asking them for a letter of support.

Applying for a work visa abroad with DACA is risky because there’s a chance that the U.S. embassy will not approve your 212(d)(3) waiver. If this happens, you could be stuck outside the U.S. You will therefore want to apply for DACA advance parole before you leave. DACA advance parole is permission from USCIS to travel abroad and safely return to the U.S. With DACA advance parole, you should be able to return to the U.S., even if your work visa application is denied. In fact, any time that you travel abroad with DACA, for example for a green card interview, it’s a good idea to apply for advance parole, in case your interview goes south.

Ask for help

DACA is in trouble, but you may have options if you want to legalize your immigration status. At Beacon Immigration, we have assisted hundreds of immigrants with their DACA, green card, and I-601a applications. Contact us today to discuss your case: +1 845.288.2435 or beaconimmigrationlawyer@gmail.com.