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Draft an adjustment of status application for a DACA recipient

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Adjustment of Status Application for a DACA Recipient

Introduction
Eligibility Criteria
Required Documentation
Step-by-Step Application Process
Legal Precedents and Case Laws
Conclusion
TLDR

1. Introduction

Adjustment of status is a process that allows eligible individuals to become lawful permanent residents (LPRs) without having to leave the United States. For Deferred Action for Childhood Arrivals (DACA) recipients, this process can be complex but achievable under certain conditions. This document provides a comprehensive guide on how to draft an adjustment of status application for a DACA recipient.

2. Eligibility Criteria

To be eligible for adjustment of status, a DACA recipient must meet the following criteria:

Inspection and Admission or Parole: The applicant must have been inspected and admitted or paroled into the United States.
Eligibility for an Immigrant Visa: The applicant must have an immigrant visa immediately available to them.
Admissibility: The applicant must be admissible to the United States for permanent residence or qualify for a waiver of inadmissibility.
Favorable Exercise of Discretion: The applicant must warrant a favorable exercise of discretion by the United States Citizenship and Immigration Services (USCIS).

3. Required Documentation

The following documents are typically required for an adjustment of status application:

Form I-485: Application to Register Permanent Residence or Adjust Status.
Form I-821D: Consideration of Deferred Action for Childhood Arrivals.
Form I-765: Application for Employment Authorization.
Form I-131: Application for Travel Document (if applicable).
Form I-864: Affidavit of Support (if applicable).
Form I-693: Report of Medical Examination and Vaccination Record.
Proof of Identity: Passport, birth certificate, or other government-issued identification.
Proof of DACA Status: Approval notices, employment authorization documents, etc.
Proof of Continuous Residence: School records, employment records, utility bills, etc.
Proof of Eligibility for Immigrant Visa: Approved immigrant petition (Form I-130, I-140, etc.).

4. Step-by-Step Application Process

Step 1: Complete Form I-485

Personal Information: Fill out your personal information, including name, address, and date of birth.
Immigration Information: Provide details about your current immigration status and history.
Family Information: Include information about your family members, if applicable.
Criminal History: Disclose any criminal history and provide relevant documentation.
Signature: Sign and date the form.

Step 2: Gather Supporting Documents

Proof of Identity: Include copies of your passport, birth certificate, and any other government-issued identification.
Proof of DACA Status: Attach copies of your DACA approval notices and employment authorization documents.
Proof of Continuous Residence: Provide school records, employment records, utility bills, and other documents that demonstrate your continuous residence in the United States.
Medical Examination: Schedule a medical examination with a USCIS-approved civil surgeon and submit Form I-693.

Step 3: Complete Additional Forms

Form I-821D: If you are renewing your DACA status, complete and submit Form I-821D.
Form I-765: If you are applying for employment authorization, complete and submit Form I-765.
Form I-131: If you need a travel document, complete and submit Form I-131.
Form I-864: If you have a sponsor, complete and submit Form I-864.

Step 4: Pay Filing Fees

Form I-485: Pay the filing fee for Form I-485, which is currently $1,140, plus an $85 biometric services fee.
Additional Forms: Pay the filing fees for any additional forms you are submitting.

Step 5: Submit Your Application

Mailing Address: Send your completed application and supporting documents to the appropriate USCIS Lockbox facility.
Receipt Notice: After USCIS receives your application, you will receive a receipt notice (Form I-797C).

Step 6: Attend Biometrics Appointment

Appointment Notice: USCIS will send you an appointment notice for your biometrics appointment.
Biometrics Collection: Attend the appointment to have your fingerprints, photograph, and signature collected.

Step 7: Attend Interview

Interview Notice: USCIS may send you an interview notice.
Interview Preparation: Prepare for the interview by reviewing your application and gathering any additional documents requested by USCIS.
Interview: Attend the interview and answer questions about your application and background.

Step 8: Receive Decision

Approval: If your application is approved, you will receive a notice of approval and your green card.
Denial: If your application is denied, you will receive a notice explaining the reasons for the denial and your options for appeal or reconsideration.

5. Legal Precedents and Case Laws

Case Law 1: Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)

Parties: Arrabally and Yerrabelly
Outcome: The Board of Immigration Appeals (BIA) held that leaving the United States under advance parole does not constitute a "departure" for purposes of triggering the unlawful presence bars under INA § 212(a)(9)(B)(i)(II).
Relevance: This case is relevant for DACA recipients who travel on advance parole and seek adjustment of status, as it clarifies that such travel does not trigger the unlawful presence bars.

Case Law 2: Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)

Parties: Quilantan
Outcome: The BIA held that an alien who is "waved through" a port of entry is considered to have been "admitted" for purposes of adjustment of status under INA § 245(a).
Relevance: This case is relevant for DACA recipients who were "waved through" a port of entry and seek adjustment of status, as it clarifies that such individuals are considered to have been admitted.

Case Law 3: Matter of Kazemi, 19 I&N Dec. 49 (BIA 1984)

Parties: Kazemi
Outcome: The BIA held that an applicant for adjustment of status must demonstrate that they are admissible to the United States.
Relevance: This case is relevant for DACA recipients seeking adjustment of status, as it emphasizes the importance of demonstrating admissibility.

6. Conclusion

Adjusting status from a DACA recipient to a lawful permanent resident is a detailed and complex process that requires careful preparation and attention to detail. By following the steps outlined in this guide and ensuring that all required documentation is submitted, DACA recipients can increase their chances of a successful application. It is also advisable to seek legal assistance to navigate the complexities of immigration law and ensure compliance with all requirements.

7. TLDR

To adjust status from a DACA recipient to a lawful permanent resident, you must meet eligibility criteria, gather required documentation, complete necessary forms, pay filing fees, and attend biometrics and interview appointments. Legal precedents such as Matter of Arrabally and Yerrabelly, Matter of Quilantan, and Matter of Kazemi provide important guidance for this process.

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