QUESTION

Can I apply for deferred action if I'm already in status to get my green card?

Asked on Aug 21st, 2012 on Immigration - Colorado
More details to this question:
My parents and I entered the US in 1998. We applied through my dad's sister, a U.S. Citizen, for permanent residency and got approved. Our case has not advanced since 2005 when we got an approval letter. I 100% qualify for deferred action and work permit, however, I'm not sure if I CAN apply seeing as how I'm already on the waiting list for my Permanent Residence. Will applying CANCEL my current petition? Can’t I get deferred action, and in two years (when it expires and when we should get our green card) get my permanent residence and keep my rights?
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8 ANSWERS

Immigration Law Attorney serving Long Beach, CA at Law Offices of Brian D. Lerner
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The 2 applications are completely separate and you can apply for deferred action. *Dream Act - Deferred Action* As you may have heard, the DREAM ACT Deferred Action has now given the opportunity for numerous people to apply for the deferred action. This is not residency and it is not citizenship. However, if done properly, it does permit the issuance from U.S. Immigration of the approval of the Deferred Action, which in turn will allow you to get a work permit, remain legally in the U.S. for the duration of the approval of the deferred action and to be assured that you will not be placed into deportation proceedings. Additionally, this procedure will allow for us to apply for the DREAM Act Deferred Action even if you are in deportation / removal proceedings. Additionally, if you already have a removal or deportation order, we can apply for this relief. Finally, even if you or somebody you know is outside the U.S. that has been deported, but would have qualified, that person also is eligible to apply for the DREAM Act Deferred Action. Keep in mind a few advisals: 1. If President Obama is not re-elected, this form of Deferred Action may be denied and/or revoked; 2. There are no derivative beneficiaries that can apply for this type of Deferred Action. Therefore, there is a risk that you may get the approval, but your parents may be targeted to be placed into Removal Proceedings. However, at that point, depending on the particular case, we may be able to be retained to prepare and submit a Request for Prosecutorial Discretion. 3. If your DREAM Act Deferred Action is denied, there is always the risk that you will be placed into Removal Proceedings. However, the option for you to submit the Request for Prosecutorial Discretion is also open.
Answered on Aug 27th, 2012 at 1:14 PM

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Rebecca T White
From what you have described you should be able to apply for Deferred Action and it would not impact your pending application.
Answered on Aug 22nd, 2012 at 12:49 PM

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Bruce A. Coane
Applying for deferred action doesn't cancel anything. If you are on a waiting list, that does not give you legal status. So, assuming you have no legal status, then yes, you can apply.
Answered on Aug 22nd, 2012 at 12:48 PM

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Immigration & Naturalization Attorney serving Seattle, WA at Julian & Chin, LLP
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You should apply for Deferred Action. If you have this status and your aunt's petition becomes current you should be able to seek adjustment of status (assuming you are eligible under either section 245(a) or 245(i) of the INA).
Answered on Aug 22nd, 2012 at 12:48 PM

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The filing and approval of an I-130 petition by itself does not give you any legal status in the US. You have to apply for adjustment of status or for an immigrant visa when your priority date becomes current. You should definitely apply for deferred action immediately if you qualify; it will not affect the validity of the petition.
Answered on Aug 22nd, 2012 at 12:48 PM

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You can apply for deferred action without jeopardizing your green card application.
Answered on Aug 22nd, 2012 at 12:48 PM

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Immigration Attorney serving Boulder, CO
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From your response, you may qualify for DACA. You should consult with an attorney about applying. Applying for DACA will not prevent you from receiving a green card in the future based upon your family based petition.
Answered on Aug 22nd, 2012 at 12:47 PM

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Immigration Attorney serving Torrance, CA at Marie Michaud, Attorney At Law
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If you are waiting for your visa availability and have not yet file your adjustment, you are currently not in legal status and can file for deferred action.
Answered on Aug 22nd, 2012 at 12:47 PM

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