Disclaimer: This post is not intended nor should be construed as offering legal advice. Always seek a qualified immigration attorney or U.S. Department of Justice accredited representative before beginning any immigration process.
With DACA (Deferred Action for Childhood Arrivals) and TPS (Temporary Protected Status) in the news recently, concerned individuals are coming to us and asking, “Can a Dreamer with DACA apply for a green card?”
Or “If a person has TPS, are they automatically qualified to become a permanent resident?”
The short answer is, “No.”
Neither DACA nor TPS offers an automatic pathway to legal permanent residency, or, as sometimes stated, earning a green card.
This is sad, even terrifying news, for the nearly 800,000 young DACA holders and the more than 300,000 foreign nationals who hold TPS, especially with the rescission of DACA on Sept. 5, 2017, and the recent termination of TPS for countries such as El Salvador, Haiti and Nicaragua.
This does not mean, though, that there are no immigration options available for a young Dreamer or TPS holders.
In fact, now more than ever is the right time for these and other foreign nationals to search out a qualified immigration attorney or legal service organization to explore these options.
What are these options? U.S. immigration law provides four basic ways that a person may immigrate.
1. Family-based immigration.
Perhaps the most important option is immigration through a qualifying family relationship.
Family-based immigration allows U.S. citizens to petition for their spouses, children, parents (when the U.S. citizen is 21 years of age or older) and siblings (again, when the U.S. citizen is 21 or older).
Legal permanent residents may petition for their spouses and unmarried children of any age.
Before becoming a DACA holder in 2013, Beatriz met and fell in love with her high school sweetheart. Later, in 2015, she renewed her DACA while continuing to date her boyfriend. They then married.
With the help of our immigration legal services program, Beatriz’s U.S. citizen husband soon petitioned for his bride to become a permanent resident.
By successfully proving theirs to be a bona fide marriage, and after a period of patient waiting, Beatriz was granted permanent residency.
2. Employment-based immigration.
There are both temporary and permanent visa options available, though most immigrants do not work in high-skilled professions where permanent visas are numerous.
In fact, only 5,000 green cards per year are available to less-skilled foreign laborers throughout the entire country.
Employment-based immigration is not a process that most LUCHA Ministries clients will ever realize.
Still, it may be worthwhile for foreign nationals such as TPS holders and others to inquire about this option with the help of an immigration attorney who practices this type of law.
3. Refugee or asylee.
To distinguish refugees from asylees, a refugee applies from outside the U.S. to immigrate, while an asylee applies from inside the U.S.
Yet both are admitted to the U.S. based upon a well-founded fear of persecution in their home country due to one of five grounds: race, religion, national origin, membership in a social group or political opinion.
After one year as refugees or asylees, they may petition the government for legal permanent residency.
Over the past several years, more and more Central Americans have fled their homes seeking asylum from the brutality of gangs.
Their claims are not baseless, though they are often hard to prove. But they aren’t impossible to prove.
Doing so often depends both on the immigration judge and access to competent legal advice.
All immigrants seeking to establish a claim of credible fear should use the services of a highly qualified immigration attorney.
4. Diversity lottery visa.
Created in 1990, this program makes it possible for individuals from countries with low immigration rates to immigrate to the U.S. However, only 50,000 diversity visas are apportioned each year.
This program has become one of the only ways people from underrepresented countries of the world can legally reside in the U.S.
In addition to these four pathways, certain humanitarian programs are also available that allow individuals to apply for a green card.
These include: the U non-immigrant visa for victims of crime, the T non-immigrant visa for victims of human trafficking and VAWA (“Violence Against Women Act”) for victims of domestic violence at the hands of a U.S. citizen or legal permanent resident.
Though no one wants to “qualify” for these types of programs, it’s good to know they exist.
As with all forms of legal immigration, prospective immigrants, no matter which pathway is open to them, must meet rigorous eligibility standards established by Congress to apply.
No immigration process is easy or guaranteed to provide a foolproof path to immigrate.
In today’s immigration climate, DACA and TPS holders, along with all unauthorized immigrants, are regrettably finding it more difficult to make the U.S. their permanent home.
This is extremely unfortunate since immigrants are and have always been the lifeblood of our country.
Now more than ever, prospective immigrants must understand the legal options they have to immigrate to the United States.
Greg Smith is field personnel with the Cooperative Baptist Fellowship and program director of LUCHA Ministries Immigration Legal Services in Fredericksburg, Virginia. You can follow him on Twitter @nuttsmith2.
One of the founders of LUCHA Ministries, Inc., Smith is an ordained minister who has worked in Latin America and served in various denominational organizations, primarily in the area of leadership development and theological education. He is currently employed by the Cooperative Baptist Fellowship and is the director of LUCHA’s Immigration Legal Services program and serves as its accredited representative.
