DACA to PERM (employment based residency)

Hello,

I am hoping someone here can offer some info/experience on Applying for permanent residency based on employment when on DACA. I hava DACA since 2012 and have been working for the same company since 2013. They and I wanted to apply for me via the Petition for Alien workers. However, after talking to one of the lawyers, he advised us not to because it will be too risky for me and for the company, given that I didnt have a status from when i turned 18 (in 2004) until 2012 when i was able to get DACA. He said that because of that I would be subject to the 3-10 year ban if i try to apply despite the fact that I came here with a visa and checked in. Does anyone know if this is true? I thought they 3-10 year applied when you come here unchecked (through the border).

The company cannot sponsor you because you are DACA.

If you are seeking a green card through employment you must have both valid entry and be in valid status at the time your green card application is filed. Although DACA is a protected status, it is not considered a "valid status" for the green card application through employment.

Its well known once you lose your status in your case, visa overstayed, the same laws apply regarding bans as EWI (entered without inspection) Since you are overstayed, there isnt much option you can do regarding adjusting through employment. I would talk to more lawyers about it but I don't think we have seen any adjustment process here with DACA and through employment

In order to adjust by work you'd need 245(i), there's no other way around it.

Alternatively you could do an I-601A waiver if you have a USC/LPR Spouse or Parent.


3/10 year ban is applied when you DEPART the United States.

You are not eligible to adjust via work because you overstayed and worked illegally. Only immediate relatives of US citizens can adjust after overstay or/and illegal employment. Immediate relatives being: Spouses, parents (of USC aged 21 or more), children (under 21) of US citizens.

Now since you can't adjust - you'd need to undergo consular processing, but consular processing, since you have to travel abroad, would trigger the 3/10 year ban. So you'd need a waiver (I-601 or I-601A), and you can only get it if you have a USC/LPR, Spouse or Parent

Thanks Demise

Thank you all for your replies. I actually never worked while I didnt have work permit. I Have not departed the US either. I conclude then that because of having DACA, there really isn't any path to permanent residency.

I am doing an EB3 through a tech company in silicon valley. The only risk for the company would be to lose the money if your waiver gets denied and you can't go through consular processing to get your immigrant visa. It's true you'd trigger the 10 year ban if you leave. However, as Demise pointed out, you could apply for a provisional waiver. Also, being on DACA has nothing to do on whether you are able to get a GC or not. It only affects us in that we cannot go through adjustment of status. This changes if you have immediate relatives though.

I am doing a hardship waiver through my parent. It's a long shot, but it doesn't hurt to try. Specially if the company is the one paying for the whole process. You need the waiver even if you didn't work illegally, you failed to maintain status and thus you will trigger the ban when you leave unless you get a waiver granted. If you are in a similar situation, I'd recommend you apply.

I am in a similar situation. I no longer live with my parents so the hardship waiver may not work for me.

How do I know if I can be covered by 245(i) ?? My parents did bring me here with a Visa. I checked in at John F kennedy airport. dreamer01100101;613909 Can ask you when, how long ago did you start the process ? I really would like to give this a try as well, I hope I can convince the company I work for to take this risk.

Hi Demise, do you know why I would have to DEPART the united states? is it because i would have to change my status from DACA to something else (visa) before I can actually do the step of applying for the green card?

I'll give you the detailed explanation:

INA 245 governs adjustment of status in there you have a few subsections, the most relevant here being (a) and (c).

(a) requires the applicant to have been lawfully admitted or paroled into US.

(c) lists several grounds that make someone ineligible to adjust status (but not inadmissible because if it was inadmissibility it'd create paradoxes, INA 212 governs inadmissibilities):

1. Alien Crewmen (C1/D visa)
2. Anyone who worked illegally or otherwise violated their visa (e.g. overstay) (not applicable to immediate relatives)
3. anyone admitted in Transit Without Visa Status (TWOV)
4. Anyone admitted under Visa Waiver Program (aside immediate relatives)
5. S visa holders
6. Involved in terrorist activities
7. Anyone seeking adjustment via work while not in lawful status
8. Anyone who seeks employment based AOS who is either out of status or otherwise violated their visa (e.g. worked illegally)

Now on DACA you are not eligible to adjust due to points 2, 7, and 8, which is why you can't adjust aside marriage (because these are not applicable then).

This doesn't mean you're inadmissible, just not eligible to adjust, so you have to go attend consular interview abroad to get your immigrant visa. But if you depart you'd trigger a 10 year ban for living in US illegally for longer than 1 year, which is why you need an I-601A waiver, to overcome that ban, get your immigrant visa, and then return.

245(i) would require you, spouse at the time, or parent if you were under 21 at the time, to have been sponsored on or before April 30, 2001. So the first place is to ask if your parents and if they think that's the case it'd be to FOIA USCIS and see what they have. Meaning that someone filed an I-130, Labor Certification, I-140, I-360, or I-526 for them before the deadline.

Note that 245(i) doesn't apply if your parent was sponsored as an immediate relative because that category doesn't allow derivatives.