Common Immigration Questions: Sponsoring Family Members and Re-applying for DACA

Continuing with our on-going “Questions and Answers” series, this week several of my clients have asked similar questions that I answer below.  These relate to the sponsorship of family members when there are criminal histories involved as well as how civil status (marriage) changes affect eligibility.  Another question that has come up recently relates to denials of Deferred Action for Childhood Arrivals (DACA) petitions.

The first question is whether a U.S. citizen son or daughter who has a criminal record is able to sponsor their parent(s) for a green card.  If an immigrant is the qualifying relative of a US citizen or even a permanent resident, then there are no barriers to the ability of their relative to sponsor them for immigration benefits.  Each filing submitted to USCIS is evaluated based on the status of the applicant and the sponsor.  Once the basic requirements are met to establish the validity of the relationship between the sponsoring relative and the immigrant, the review then focuses on the immigrant’s history and their ability to obtain financial support to adjust status.  The criminal history of the sponsor is usually not relevant to the review process, although the criminal history of the immigrant is always relevant. 

Another related question for those who are part of a family petition is what, if anything, happens if the beneficiary changes their civil status from single to married.  For example, my dad sponsored me when I was single and I recently got married, what is going to happen to my application?  Although the answer to this question depends on many things, the most important is the status of your relative at the time of your sponsorship.  When a family member sponsors an immigrant, their relationship to you and their individual immigration status will determine what benefit you will be entitled to.  If their status changes or your relationship changes at any time in this process (prior to the immigrant receiving a green card), then there could be significant impact on your process.  For example, let’s assume you are an unmarried son or daughter of a legal permanent resident and you have received an approved visa petition, but you will not be able to adjust your status for several years.  If you later get married, your category for purposes of the visa petition has now changed and you are no longer eligible for adjustment of status.  Alternatively, if your parent was a citizen rather than a permanent resident at the time of the application, the same situation would not result in your inability to obtain a green card, it would only change the category of your petition and the amount of time you have to wait for an available visa.

Last is the question relating to Deferred Action.  If my DACA was denied last year, can I apply again?  Although the government has been very clear that denials of Deferred Action for Childhood Arrivals have no associated right of appeal or reconsideration, they have been open to accepting a second filing.  This should ONLY be done for applications denied for certain reasons.  If your original filing was made and you met all the eligibility requirements and they still denied your request for unclear reasons or for a reason that is not supported by the facts (like they said you didn’t include your birth certificate when you actually did), then you may be a good candidate for a second filing.  It is very important for this second filing that you are 100% positive you meet all the requirements and you can specifically address the stated reason why they denied your initial request.  Only select filings with specific correctable problems will be approved after a second request.  If this has happened to you, it is important to speak with an experienced immigration attorney right away so that your filing can be submitted without delay and in a way that will result in an approval.

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