Combination of legal and illegal stay for DACA work permit

Rosie writes, "I'm trying to apply for DACA and was wondering if my two-week absence from the U.S. in July 2007 would disqualify me.  I entered the U.S. without inspection when I was 12 and went to both middle and high school in the U.S. I graduated from high school in June 2007, but I was still undocumented then. In July 2007, I left the U.S. for my home country for 2 weeks to visit family and get an F1 student visa and come back to the U.S. legally for college and get a legit SSN. So during those 2 weeks while I was absent from the U.S., I went to the U.S. embassy and got an F1 visa (everything had already been planned before I left the U.S., so I just needed to show up at the embassy in my home country and get the visa). I came back to the U.S. on F1 visa on August 1, 2007 and have graduated from college.  So basically, I was undocumented from 1999 to July 2007, then legal from August 1, 2007 to June 14, 2012. My F1 visa expired on June 14, 2012. I have been out-of-status since then.  I have not left the U.S. since August 1, 2007.  My question is, would that 2-week absence back in July 2007 be considered "brief, casual, and innocent absences from the United States"? Would a change in visa status disqualify me?"


USCIS is being very generous in approving DACA cases:  Your situation is interesting and if one were to read the USCIS DACA guidelines literally, your absence was brief but definitely neither casual nor innocent.  You deliberately left the country with a very specific mission and there is evidence of your intention in form of a visa in the system.  Now if your application were to land on the desk of an officer who was really strict about the interpretation of the requirement, you could be disqualified.  My guess, though, is that the USCIS is trying to help as many people as it can and the worst that can happen to you is that your application will be rejected, but it is a risk worth taking.  I would say that you should speak to an attorney and get solid legal advice on this matter but you really have nothing to lose by applying.  I would say that you should honestly answer all questions and just hope that they will consider your case with kindness, that, you were trying to do the best you could to be legal in the country.  I am optimistic that you will be approved, though, I am a little concerned that if you told the whole truth when getting your student visa, considering that you were already in the US illegally before applying.  If that is a problem, it could come to bite you later, but not this time, because you have much more honorable history than many other DREAMers.

You should provide the details on the I-94 you have because it is already in the system.  Though, from item 13-15, you should list your initial EWI entry in 1999 and treat the 2007 visit as an absence of two weeks for which you do have a I-94 and entered the country with inspection. Then in part 2 later on, you should include your absence details and explain that you "went to get a F-1 visa."  The idea behind this approach is that all this time you were basically a resident in the country and merely left for two weeks to try to legalize your status.