Dear Atty. Gurfinkel:
I am out of status, but in 2006, my employer sponsored me for a green card through labor certification or PERM. The Department of Labor certified my application, and the USCIS approved my employer’s I-140 petition. However, my attorney keeps telling me I still need to “wait” for some kind of change in law or amnesty, or I need to wait until my US citizen child reaches 21 years of age, so she can petition me, which will be many years from now. The priority date on my case is current, so I don’t understand why I cannot apply for adjustment of status or work authorization.
I really don’t know why I need to wait, or what I’m waiting for. Is there anything else I can do?
Very truly yours,
R.P.
Dear R.P.:
If a person is out of status, they are not eligible to adjust status (or be interviewed for a green card) in the US, unless they have the benefit of a law called Section 245(i), or they are being petitioned as an “immediate relative” (parent, minor child, or spouse of a US citizen).
Section 245(i) expired on April 30, 2001, and in order to benefit from that law, the person had to be petitioned either by a family member or an employer before that date. In your case, your employer sponsored you in 2006, which was after the expiration of Section 245(i). Therefore, unless you were petitioned in some other way before April 30, 2001, you will not be eligible to adjust status in the US, until your child reaches 21 years of age, and then can petition you. Therefore, it is as though your labor certification case is like the Titanic, and it has hit the iceberg.
However, even though you were petitioned by an employer, you may also be eligible for executive action through Deferred Action for Parental Accountability (or DAPA), which could result in relief from deportation and work authorization. Although DAPA does not result in “legal status” or a pathway to a green card, at least it provides governmental assurance they will not come after you to deport/remove you, and you can have a work authorization, which can be renewed, possibly until your child reaches 21 years of age.
The basic requirements for DAPA are that the person:
• is the parent of a US citizen or lawful permanent resident (green card) child as of November 20, 2014.
• entered the US before January 1, 2010, and has resided in the US continuously since that time.
• is not an “enforcement priority,” meaning the person is basically “law abiding,” has not committed certain crimes, is not a terrorist, or a threat to society, etc.
If you are stuck in a case that has come to a dead end, or is going nowhere, but you believe you may be eligible for DAPA, you may want to seek the advice of an attorney now, who can evaluate your eligibility, and help package and present your application. It is estimated that the USCIS will start accepting applications around May 2015, but in the meantime, you can already start gathering documents, and have your case evaluated (i.e. have you ever filed for any other immigration benefit before? Were you denied? Do you have an outstanding deportation order? A person could be eligible for DAPA even if previously ordered deported. Do you have a minor crime that needs to be addressed or dealt with so you’ll be eligible for DAPA?, etc.)
Those items can be addressed already, rather than waiting for USCIS to start taking applications, when it is estimated that millions and millions of Latinos will be taking advantage of this benefit (just like what they did with DACA, where hundreds of thousands of Latinos applied for their children, but just over 3,000 Filipinos did).
If you believe you’re eligible for DAPA, you should take advantage of this benefit when it becomes available, rather than being left behind, or left out.
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