I am married to a U.S. citizen and have a U.S. child should I file for DAPA (Form I-821D) or the Unlawful Presence Waiver (Form I-601A)?

////I am married to a U.S. citizen and have a U.S. child should I file for DAPA (Form I-821D) or the Unlawful Presence Waiver (Form I-601A)?
Deferred Action for Parental Accountability (DAPA) will only give you protection from deportation, but doesn’t by itself give you a green card.  Your wife’s filing for you can give you a green card, the only way this works is if you entered without permission or don’t qualify for the Life ACT (245i).  Otherwise, you would be filing for adjustment of status and wouldn’t even be considering DAPA.  Assuming you have to consular process, you will be subject to the 3 and 10 year bar unless you receive a waiver.  If the only reason you need a waiver is for your unlawful presence in the U.S. then you can file Form I-601A.  Once that is approved, you then leave the U.S. and get interviewed at the U.S. consulate in your home country.  When you return, you get a green card.

You may be able to use DAPA, apply for Advance Parole for permission to leave and re-enter the U.S., and upon your return to the U.S. apply for adjustment of status.  Approximately six months later, you will likely receive your green card.  There are a number of caveats in this process, but for the right person it avoids the waiver and the consular process interview.  This will likely also take longer, be slightly more expensive in fees, but a lower risk if you do it right.

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.

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.

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).  Once your DAPA is approved you get work authorization.  You can then apply for Advance Parole (expect 1-2 months).  With the legal entry you can file for adjustment of status (expect 4-6 months).  You can also work to proving extreme hardship.  If you have a strong case for it, I may recommend filing for the waiver instead of Advance Parole and adjustment of status.

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.

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