[831surfer1]

My husband currently has DACA and I-1765- Employment Authorization. He has 1/2 legal and physical custody of his 4yr old daughter from his previous marriage. There is a set schedule through court that we must follow strictly. He also pays child support. We have been married for 1 year even though we have known each other for 10. (middle school friends) Can I request an I-130 and have him get his green card without having to leave the country? otherwise he might lose custody and fall behind on child support if he does. I am a certified Medical assistant and we are soon to purchase our first home. please advise...
- Thank you

[newacct]

You can file I-130 at any time; but in order to get a green card he needs to either go through Adjustment of Status (AOS) in the U.S. or Consular Processing (CP) abroad; that's the hard part.

If he entered the U.S. legally, then yes, you guys can immediately file I-130 and I-485 for him to do Adjustment of Status in the U.S.

If he entered the U.S. illegally, then he is not eligible to do Adjustment of Status right now. There are several options to get a green card given his situation:

1. If you are an active duty member of the U.S. armed forces, he can get Parole-in-Place, which will allow him to do Adjustment of Status in the U.S.

2. He can apply for Advance Parole (AP), a document that allows him to re-enter the U.S. without a visa. People with DACA are allowed to get AP if they have a legitimate humanitarian reason to need to leave the country, e.g. to visit elderly parents who he hasn't seen in years, or something. If he gets this, once he leaves the U.S. and comes back using his AP, he will have entered the U.S. legally, and is then eligible for Adjustment of Status in the U.S. Since he has DACA, you guys should at least try this first, because there is no harm if he doesn't get AP, there is a high chance of success if he gets the AP, and he won't have to leave the U.S. for very long.

3. He goes through Consular Processing at a U.S. consulate in his home country. The main problem with this for people who are illegal is that leaving the U.S. might trigger the unlawful presence ban. If he accrues at least 180 days of "unlawful presence" and then leaves the U.S. he has a 3-year ban; if he accrues at least 1 year of "unlawful presence" and then leaves the U.S. he has a 10-year ban. "Unlawful presence" is a complicated thing; it generally starts accruing when someone exceed the date on their I-94. But there are exceptions; for example, people do not accrue unlawful presence when they're under 18; people do not accrue unlawful presence during the time they have DACA; people who entered on F or J visa generally get "D/S" instead of a specific date on their I-94, and thus do not automatically accrue unlawful presence when they overstay. If it turns out your husband has accrued less than 180 days of unlawful presence, he should have no ban on leaving the U.S. and he can do consular processing outside the U.S. although this process may take several months. If he has accrued at least 180 days of unlawful presence, he can try to get a waiver of the ban based on hardship to you. He can apply for a provisional waiver with I-601A before he leaves the U.S.