DACA • INA §245(a) • Advance Parole • Form I-485

DACA and Adjustment of Status

Deferred Action for Childhood Arrivals does not itself provide lawful immigration status, admission, parole, permanent residence, or an independent path to a green card. A DACA recipient can nevertheless become eligible for adjustment through a separate immigrant category, such as marriage to a U.S. citizen, another family relationship, employment, VAWA, or INA §245(i). The critical questions are how the person originally entered, whether a later admission or parole occurred, what status and unauthorized-employment bars apply, how much unlawful presence accrued, whether a removal order exists, and whether departure with advance parole would create inadmissibility under current law.

Major 2026 Change

DACA advance parole must now be reviewed under Matter of Delcarmen-Lara.

On August 13, 2026, the BIA held that departure pursuant to advance parole is a “departure” for INA §212(a)(9)(B)(i)(II) and expressly overruled Matter of Arrabally & Yerrabelly. The respondent in Delcarmen-Lara was herself a DACA recipient who had traveled on advance parole and returned as a parolee. A DACA recipient with prior qualifying unlawful presence should therefore calculate the three-year or ten-year bar before leaving the United States, even when USCIS has approved advance parole.

Three Distinct Immigration Concepts

DACA does not convert an old immigration history into lawful status

Deferred Action

DHS temporarily defers removal as an exercise of prosecutorial discretion. DACA itself does not create immigrant or nonimmigrant status.

Lawful Presence

A person generally does not accrue unlawful presence for INA §212(a)(9)(B) while a valid DACA grant is in effect, but earlier unlawful presence is not erased.

Adjustment Eligibility

The person needs a separate immigrant basis and must independently satisfy INA §245 or another adjustment statute.

Current DACA Program Status

Renewals continue; initial approvals remain blocked.

As of August 30, 2026, existing DACA recipients remain able to seek qualifying renewals, and current grants and related employment authorization remain recognized unless they expire or are individually terminated.

USCIS continues to accept initial DACA requests but is not presently permitted to grant them under the continuing federal-court litigation.

USCIS also continues to accept and adjudicate advance-parole applications for current DACA recipients.

DACA is deferred action, not permanent immigration status

DACA is a form of deferred action and prosecutorial discretion.

A valid grant can provide:

A period during which DHS defers removal action;
Eligibility to request employment authorization when the requirements are met;
A period generally treated as authorized presence by DHS; and
Eligibility for current DACA recipients to request advance parole for qualifying travel.

DACA does not create a green-card category. A DACA recipient must qualify through another immigrant or adjustment provision.

DACA is not lawful immigration status

USCIS has consistently stated that deferred action does not confer lawful immigration status.

That distinction matters because INA §245 contains provisions that focus on:

Lawful immigration status;
Lawful nonimmigrant status;
Continuous maintenance of status;
Unauthorized employment; and
Violations of the terms of admission.

Lawful presence is different from lawful status. A valid DACA period generally prevents accrual of unlawful presence for §212(a)(9)(B), but that does not place the recipient in a lawful nonimmigrant classification.

DACA itself is neither admission nor parole

A grant of DACA does not mean that DHS has:

Admitted the person under INA §101(a)(13)(A); or
Paroled the person under INA §212(d)(5)(A).

Therefore, a DACA recipient who originally entered without inspection does not satisfy ordinary INA §245(a) merely because DACA was later granted.

First Adjustment Question

Ignore the DACA card for a moment and ask: before or after DACA, was the person ever inspected and admitted or inspected and paroled?

DACA recipient who originally entered lawfully

Some DACA recipients originally entered the United States after inspection and admission but later overstayed or fell out of status.

For example, a person may have entered as:

B-2 visitor;
F-2 dependent;
H-4 dependent;
Other dependent child; or
Another nonimmigrant classification.

That historical admission can satisfy the threshold requirement of ordinary INA §245(a).

The later loss of status remains relevant. Whether it bars adjustment depends on the immigrant category and applicable exceptions.

DACA recipient who entered without inspection

A person who entered between ports of entry without inspection generally cannot satisfy ordinary INA §245(a) based on that entry.

DACA itself does not cure the problem.

Potential alternative routes can include:

INA §245(i) grandfathering;
VAWA adjustment provisions;
Special immigrant juvenile adjustment;
A qualifying later parole;
A qualifying later admission; or
Another specialized adjustment statute.

Do not assume advance-parole travel is automatically the solution. Since August 13, 2026, Matter of Delcarmen-Lara requires a new unlawful-presence analysis before departure.

See Entry Without Inspection.

DACA recipient married to a U.S. citizen

Marriage to a U.S. citizen creates an immediate-relative immigrant basis but does not itself establish the §245(a) entry requirement.

DACA recipient originally admitted or paroled

A qualifying immediate relative who can prove a historical admission or parole may potentially adjust even after:

Loss of lawful status;
Long overstay;
Unauthorized employment; or
Years in DACA.

This is because immediate relatives receive important exemptions from the principal §245(c)(2) and §245(c)(8) adjustment bars.

DACA recipient who entered without inspection

Marriage alone does not cure EWI.

The applicant needs another basis satisfying or replacing the ordinary admission/parole requirement.

DACA recipient in a family-preference category

A family-preference applicant generally does not receive the broad immediate-relative exemption from status and unauthorized-employment bars.

Therefore, even if the DACA recipient has a qualifying admission, the case may still be affected by:

INA §245(c)(2);
Prior failure to maintain lawful status;
Unlawful immigration status at filing;
Unauthorized employment;
INA §245(c)(8); and
Visa availability.

DACA does not retroactively create lawful status for the pre-DACA period. Nor does it ordinarily cure a §245(c) violation that occurred before DACA was granted.

DACA and employment-based adjustment

Employment-based adjustment can be more difficult because DACA is not lawful nonimmigrant status.

Potential problems can include:

INA §245(c)(2);
INA §245(c)(7), requiring lawful nonimmigrant status at filing for ordinary employment-based adjustment;
INA §245(c)(8);
Unauthorized employment outside a valid EAD period; and
Whether INA §245(k) is available.

Parole is also not a lawful admission for INA §245(k). A DACA recipient who returns on advance parole may satisfy §245(a) through parole but still fail §245(k)'s lawful-admission requirement.

Some employment-based DACA cases may instead depend on:

A prior lawful admission;
§245(i) grandfathering;
Consular processing with required waivers; or
Another special immigration strategy.

INA §245(i) can be extremely important for DACA recipients

A DACA recipient who entered without inspection may be able to adjust without departing if grandfathered under INA §245(i).

The evaluation should search for a qualifying:

Immigrant petition filed on or before April 30, 2001;
Labor certification filed on or before April 30, 2001;
Petition filed for a parent or spouse through whom grandfathering may derive; or
Other qualifying grandfathering relationship.

Before Advance-Parole Travel

Check §245(i) first. A DACA recipient who already possesses a domestic adjustment route through grandfathering may not need to rely on international travel to satisfy §245(a).

See INA §245(i).

DACA advance parole

Current USCIS practice allows current DACA recipients to request advance parole.

USCIS generally limits DACA advance-parole travel to qualifying:

Humanitarian purposes;
Educational purposes; or
Employment purposes.

Vacation alone is not a qualifying DACA advance-parole purpose under USCIS guidance.

Advance parole must be approved before departure.

Advance authorization is not the same as actual parole. When the recipient returns, CBP determines whether to parole the traveler into the United States. The actual parole on return can satisfy the §245(a) inspected-and-paroled requirement.

See Advance Parole and Adjustment Eligibility.

Matter of Delcarmen-Lara changed DACA advance-parole strategy in 2026

On August 13, 2026, the BIA issued Matter of Delcarmen-Lara, 29 I&N Dec. 830.

The respondent:

Had received DACA;
Had an approved I-130 filed by her U.S. citizen husband;
Departed the United States with advance parole;
Returned as a parolee in January 2024; and
Sought adjustment under INA §245(a).

The BIA held that departure pursuant to advance parole is a “departure” for INA §212(a)(9)(B)(i)(II).

It expressly overruled Matter of Arrabally & Yerrabelly.

This eliminates the old assumption that advance-parole travel cannot trigger the three-year or ten-year unlawful-presence bar. DACA recipients must now calculate qualifying unlawful presence before departure.

Calculating unlawful presence before DACA travel

DACA and unlawful presence must be analyzed chronologically.

Important rules include:

Time before age 18 generally does not count as unlawful presence for INA §212(a)(9)(B);
A person generally does not accrue unlawful presence while a valid DACA grant is in effect;
DACA does not erase unlawful presence accrued before the grant;
A pending initial DACA request does not necessarily stop unlawful-presence accrual for an adult;
A gap between DACA grants can create additional unlawful presence depending on the circumstances; and
Other periods of authorized stay can affect the calculation.

Example

A person who accrued more than one year of qualifying unlawful presence after age 18 before receiving DACA may trigger INA §212(a)(9)(B)(i)(II) by departing on advance parole under current Matter of Delcarmen-Lara.

If the bar is triggered, the applicant must determine whether:

A waiver is available;
A qualifying relative exists;
Another statutory exception applies; or
Travel should not occur.

DACA recipient with a removal order

DACA does not automatically vacate an old removal, deportation, exclusion, or expedited-removal order.

Before international travel, determine whether the person has:

An in absentia removal order;
A final immigration judge order;
An old deportation or exclusion order;
Expedited removal;
Voluntary departure with an alternate removal order;
A reinstated order; or
Another final removal disposition.

Travel with an outstanding removal order can have consequences separate from the unlawful-presence bar. USCIS itself cautions DACA recipients with removal orders to seek appropriate reopening or termination before travel.

The case should be analyzed under:

INA §212(a)(9)(A);
INA §212(a)(9)(C);
Reinstatement rules;
Permission to reapply where required; and
Current EOIR jurisdiction and reopening law.

Leaving the United States without advance parole

Current USCIS guidance strongly warns DACA recipients against departing without advance parole.

Possible consequences include:

Loss of the period of deferred action upon departure;
Inability to return;
Unlawful-presence inadmissibility;
Consequences from an outstanding removal order;
DACA termination issues after an unlawful reentry; and
Potential INA §212(a)(9)(C) consequences.

A valid DACA EAD is not a travel document. International travel requires separate immigration authorization and a complete admissibility analysis.

DACA adjustment scenarios

History	Potential Adjustment Result
Admitted as child, later received DACA, now married to U.S. citizen	Potentially strong §245(a) route because historical admission may satisfy entry requirement and immediate-relative exemptions may cover status violations.
EWI, DACA, married to U.S. citizen, no other admission/parole	Ordinary §245(a) threshold not satisfied solely through DACA; analyze §245(i), VAWA, qualifying parole, or other route.
EWI, DACA, later returned on advance parole	Parole may satisfy §245(a), but current Delcarmen-Lara requires unlawful-presence analysis based on the departure.
DACA recipient with §245(i) grandfathering	May potentially adjust domestically despite EWI and specified §245(c) violations.
DACA recipient seeking employment-based I-485 after advance-parole return	Parole may satisfy §245(a), but §245(c)(7) and §245(k)'s lawful-admission requirement require separate analysis.
DACA recipient with final removal order considering travel	High-risk case requiring removal-order, §212(a)(9), reopening, and parole analysis before departure.

Evidence for a DACA adjustment evaluation

Obtain:

Every DACA approval notice;
Every Form I-821D;
Every DACA EAD;
Complete DACA renewal history;
All passports;
Every Form I-94;
Original entry evidence;
Advance-parole approvals;
Evidence of every advance-parole departure and return;
CBP travel history;
Removal and immigration-court records;
Prior immigration petitions;
Evidence of any §245(i) grandfathering;
Employment records;
Age and residence chronology; and
A detailed unlawful-presence calculation.

Best Practice After August 13, 2026

For every DACA recipient considering advance parole, calculate unlawful presence and review removal history before Form I-131 is treated as an adjustment strategy.

Frequently asked questions

Does DACA let me file Form I-485?

Not by itself. DACA is deferred action, not an immigrant category. You need a separate permanent-residence basis and must satisfy the applicable adjustment requirements.

Does DACA count as lawful status?

No. USCIS states that DACA does not confer lawful immigration status, although a valid DACA period generally prevents accrual of unlawful presence for INA §212(a)(9)(B).

I entered legally as a child and now have DACA. Can I adjust through my U.S. citizen spouse?

Potentially. The historical admission may satisfy §245(a), and qualifying immediate relatives receive important exemptions from status and unauthorized-employment bars. Admissibility and the full immigration history still must be reviewed.

I entered without inspection. Does DACA cure that?

No. DACA itself is neither admission nor parole. §245(i), a later qualifying parole or admission, VAWA, SIJ, or another special statutory provision may change the result.

Can DACA recipients still apply for advance parole?

Yes. Under current USCIS practice, current DACA recipients may request advance parole for qualifying humanitarian, educational, or employment travel.

Is advance parole still a safe way to create a parole entry for adjustment?

It can create a qualifying parole on return, but it is no longer safe to assume the departure has no unlawful-presence consequence. Matter of Delcarmen-Lara now treats advance-parole travel as a departure under INA §212(a)(9)(B)(i)(II).

I received DACA before turning 18. Did I accrue unlawful presence?

Time before age 18 generally does not count toward INA §212(a)(9)(B), and a valid DACA period generally does not accrue unlawful presence. The complete chronology should still be calculated before international travel.

I have a removal order and DACA. Can I travel with advance parole?

A removal order creates additional risks. USCIS cautions affected recipients to address the removal proceedings before departure, and current law requires separate analysis of removal, reinstatement, and INA §212(a)(9).

Can a DACA recipient adjust through employment?

Sometimes, but DACA is not lawful nonimmigrant status and advance parole is not a lawful admission for §245(k). Employment-based adjustment therefore requires a careful review of §245(c)(2), §245(c)(7), §245(c)(8), §245(k), and any §245(i) grandfathering.

Primary Authorities

DACA adjustment authorities

USCIS DACA

Consideration of Deferred Action for Childhood Arrivals

DACA Regulations

8 C.F.R. §§236.21–236.25

DACA Litigation

Texas v. United States, Fifth Circuit, January 17, 2025

2026 BIA Precedent

Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026)

Adjustment Statute

INA §245 / 8 U.S.C. §1255

Unlawful Presence

INA §212(a)(9)(B) / 8 U.S.C. §1182(a)(9)(B)

Legal content reviewed August 30, 2026. Existing DACA renewals and advance-parole processing continue under current agency practice while initial DACA approvals remain blocked by ongoing federal litigation. On August 13, 2026, Matter of Delcarmen-Lara overruled Matter of Arrabally & Yerrabelly and held that departure on advance parole is a departure for INA §212(a)(9)(B)(i)(II).

Are you considering adjustment or advance parole while holding DACA?

The Messersmith Law Firm, P.A. handles complex DACA adjustment matters involving entry without inspection, advance parole, unlawful presence, removal orders, INA §245(i), marriage-based adjustment, employment-based adjustment, inadmissibility, RFEs, NOIDs, and I-485 denials.

Schedule a Consultation