Which Is Better, Deferred Action or the I601a Provisional Unlawful Presence Waiver?

Should I prepare for Deferred Action for Parental Accountability (DAPA) instead of the Provisional Unlawful Presence Waiver process?  I have been asked this a lot since President Obama’s November 20, 2014 announcement on Deferred Action.  To answer that question, we need to first understand the two processes.

DAPA will only give you protection from deportation, but doesn’t by itself give you a green card, whereas a U.S. citizen spouse filing an Alien Relative petition for your with Consular Processing and the Provisional Unlawful Presence Waiver to forgive your illegal entry, will result in a green card.  That difference can’t be over emphasized.

Case Scenario: George Married to Maria, a U.S. Citizen

Let me give you a factual scenario to better understand these two processes.  George came to the U.S. in 1998 without permission.  In 2006, George married Maria a U.S. citizen.  They have two kids.  Maria now wants George to get legal status and they are looking for the best way to do so.  No one has ever filed for George to get an immigration benefit before April 30, 2001 (disqualifying him from the Life Act (8 U.S.C. 245(i)).

George’s Green Card Process With a Waiver

Maria can file for George’s green card by first proving they have a legitimate marriage, but he can’t adjust his status in the U.S. since he entered without permission and doesn’t qualify for the Life Act (245i). Since George can’t adjust in the U.S., he will have to leave the U.S. and present himself for an interview with a consular official in his home country, which is known as consular processing.  However, since George was in the U.S. for a year without permission, when he leaves he won’t be able to return for 10 years unless he applies and receives the Unlawful Presence Waiver.  If the only reason George needs a waiver is for his unlawful presence in the U.S., then he can file Form I-601A from within the U.S. George will have to prove that Maria will suffer extreme hardship if he isn’t allowed to return in less than 10 years.  Once his waiver is approved, George leaves the U.S. for his scheduled interview.  When George returns, he gets his green card.

If George can’t make a compelling case for extreme hardship to Maria by focusing on her medical or mental issues, financial considerations, country conditions, personal and educational conditions, or other special factors, then DAPA may be his only option.  The President promised greater clarity on “what is extreme hardship,” we expect that in the weeks to come.

George’s DAPA Process

For DAPA George will need to show that he:

  1. Has lived in the U.S. since January 1, 2010,
  2. Has a child born before November 20, 2014 who is either a U.S. citizen or lawful permanent resident,
  3. Has in the U.S. on November 20, 2014 without legal status,
  4. Hasn’t been convicted of a felony, significant misdemeanor, three or more misdemeanors, and are not a threat to national security or public safety

In George’s situation, DAPA may not fit at all.  DAPA won’t by itself get George a green card.  George will only be able to use apply for DAPA on May 19, 2015.  After approval he can then apply for Advance Parole, or permission to leave and re-enter the U.S.  At present, that is only done for humanitarian, educational, or job related need, but we are waiting additional guidance on this as well.

Let’s say George applies and receives Advanced Parole.  Upon his return to the U.S., he will have been “admitted, inspected, or paroled.”  It is possible that when he re-enters Customs and Border Patrol may question him.  He will likely either be “admitted” or “paroled.”  If paroled, he will be put in front of Immigration Judge to explain his situation.  In either event, he would now qualify for adjustment of status without having filed a waiver or been subjected to a consular interview.  He will then get his green card.

There are a number of caveats in this process, but for the right person the DAPA to Advance Parole to Adjustment of Status avoids the waiver and the consular process interview.  This will likely also take longer, be more expensive in fees, but a lower risk if you do it right.

But What About You?  I601a or DAPA?

Figuring out which is the best option for you depends on where in the process you are, your risk tolerance, and what your wallet can afford.  Every petition has filing fees, and attorney fees are not cheap either.  This is definitely not something you should do without the assistance of an attorney.  There are too many ways this can go wrong.

If you already have an approved Form I-130, Petition for Alien Relative, and can show extreme hardship to your U.S. citizen spouse, I would file the waiver.  That will likely be the fastest way to getting work authorization and a green card.  If you have a compelling waiver case, I wouldn’t even wait for additional guidance on what is “extreme hardship.”

However, if you haven’t filed anything yet I would recommend the path that gives you the most options.  I would file the I-130 (presently takes 12 months to process) and file for DAPA (expected to take approximately 6 months but can’t file before May 19, 2015).  Now you are in December of 2015, your DAPA has been approved and so has your spouse’s Petition for Alien Relative (Form I-130).  You can now weigh the strength of your extreme hardship vs. your risk tolerance.  You already have work authorization.  The only question is whether you seek the waiver process or the Advance Parole (expect 1-2 months) and Adjustment process (expect 4-6 months).

Every case is unique.  If your extreme hardship is questionable, your choice is simple, DAPA.  If you have a strong extreme hardship claim, but don’t want to risk the consular process, again your choice is simple, DAPA.  You have to decide what is right for you, but at least you have a choice.

Free Resources

Not sure where to start?  Take a look at these FREE resources:

  1. Do You Qualify for Legal Status?  Find out with this free tool.  Select the link, answer the questions, and find out for FREE.
  2. Do You Need an Immigration Attorney? You Might Not – Learn when you need an immigration attorney.
  3. 7 Critical Questions to Ask Before Hiring an Immigration Attorney – Not sure how to find the right attorney, read this book.
  4. An Immigrant’s Guide to Municipal Court – This is if the worst happens and you find yourself in immigration custody.  Learn how to get out of custody and what happens in court.  You will also learn how relatively minor matter can result in deportation proceedings.

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