You’ve heard it a million times over. And it’s true. Obama’s deferred action program for childhood arrivals is NOT a pathway to residency or citizenship. The program only allows for an employment authorization, and in turn, a social security number and driver’s license. Those who have deferred action status are also eligible to apply for a travel permit, known as “advance parole”. This permit allows a grantee permission to enter the United States after temporary travel abroad for humanitarian, educational, or employment reasons.

Now this is where it gets tricky.

Having deferred action status and traveling on advance parole can open the door to a process called “adjustment of status”, which provides permanent residency, or a “green card”. This process is not available to every person who has deferred action and travels on advance parole. Rather, it is only available for those who could derive status from an immediate relative who is a U.S. citizen (i.e. spouses, parents, and adult son and daughters over the age of 21).

But why does an immediate relative NEED to apply for deferred action if they have a relative who could sponsor their residency?  Why not just apply for residency, which gives you a permanent work permit and leads to citizenship, rather than deferred action which is temporary? Worded differently, why apply for an inferior benefit when you can apply for a superior one?

Because the immigration system is broken.

Under the current immigration regulations, if an immigrant enters the United States without inspection, meaning without having a U.S. immigration officer inspect and admit you, they cannot apply for a green card inside the United States (even if they entered as children). However, those who enter with a visa and later overstay their visa ARE eligible to apply for residency. Similarly, if you entered with fraudulent documents you could also be eligible to apply for residency inside the U.S. It all depends on whether you were “inspected and admitted”. A legal technicality.

This regulation is especially harsh on Mexican immigrants since most enter without inspection, due to the proximity to the U.S., and the difficulty in obtaining a visitor visa. Therefore, many Mexicans who are married to U.S. citizens cannot apply for residency, yet many other nationalities who are married to U.S. citizens are able to apply for residency in the U.S. if they initially came in with a visa (even if they overstayed said visa). Why is there this distinction in the law? Are they not both breaking the law? And why are there no exceptions for those who entered as children?

For many years there has not been an exception for these children who entered unlawfully who were otherwise eligible to adjust their status[1]. Until now.

Obtaining deferred action status and traveling on advance parole will change your admission as being “inspected and admitted”. Therefore, if you initially entered without inspection and could not apply for residency in the U.S. through an immediate relative petition, now is your chance.

WARNING: Those who have a criminal record should contact an immigration attorney to make sure you will be able to return to the United States after traveling on advance parole. Furthermore, not everyone eligible for permanent residency will be able to apply using advance parole. Only IMMEDIATE relatives qualify.

NOTE: The information provided contains general information and is not legal advice. Every case is different and as such, intending applicants should contact a qualified immigration attorney to obtain accurate, case specific information.

To speak to an experienced immigration attorney, contact Isabel Cueva at 801-893-1485.

[1] If you are protected under INA Section 245(i), which ended on April 30, 2001, you do not need to apply for DACA and AP if you have an immediate relative who is a U.S. citizen. You may simply pay a penalty fee of $1000 and apply for adjustment of status based on an immediate family petition.