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Can my daughter adjust status although she was over 1 year in Unlawful Presence?

San Bernardino, CA |

My daughter's priority date will be current in April . I am a Permanent Resident and in 3 years I become citizen . She accumulated unlawful presence before having her DACA approved , but she entered with a valid visa and was inspected . She is 20 now and her I - 130 petition was approved about a year ago . Do we have to file I - 601 , which I believe we have a solid case for , along with her I - 485 or should I assume that the USCIS , upon filing I - 485 will determine if the I - 601 is needed , in which case we file it , or simply process her adjustment if they deem she does not need it ? Thanks

Attorney Answers 4

  1. Who filed the petition for your daughter? If you were the petitioner and you're not a U.S. citizen, then your daughter doesn't qualify for adjustment of status with the I-485. Adjustment of status is only for immediate relatives of U.S. citizens. If your daughter's petitioner is not a U.S. citizen, then she'll have to do consular processing, which requires her to go back to her native country and complete the process there. When she leaves the country, she will trigger the 10-year bar for more than one year of unlawful presence, and then you will need the waiver. If the petitioner was a U.S. citizen parent or spouse, then your daughter should be able to adjust status here since she entered with a visa, and then the unlawful presence won't be an issue for her. There are really a lot of factors that your family should consider in this case, and a few possible strategies you could take. I strongly recommend that you speak with an immigration lawyer as soon as possible, who can review all the details of the situation and advise you accordingly.

    The information offered is general in nature and not meant to be relied upon as legal advice. No client-attorney relationship is created through this information. Please consult an attorney prior to making legal decisions.

  2. Only if she qualifies for 245(i).

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

  3. Your daughter has two significant issues. First, she has accrued at least a year of unlawful presence. As you are aware, this subjects her to a ten-year bar to admission. She would need a waiver based upon extreme hardship. The second issue is her ability to adjust her status in the Ubited States. A person who is the beneficiary of a preference petition must be in a lawful non-immigrant status to seek adjustment of status in the U.S.Your daughter was previously admitted to the U.S., but failed to maintain lawful non-immigrant status. A grant of DACA does not confer lawful immigration status.

    You should consult an experienced immigration attorney before taking any further action on this matter.

  4. This is a very complex situation and you need to speak to an attorney very quickly. First, your daughter could age out if she turns 21. That would mean that she would have to wait in the longer line for children over 21 if you are not careful. If she files an application for adjustment of status or an immigrant visa application within one year of April 1, 2013, then it would freeze her age on that date (less the number of days of the I-130 is pending). Your daughter will not be eligible for adjustment of status for reasons I state below. However, if she is very soon going to turn 21, you might have to file the I-485 to protect her being covered by the CSPA (it would trigger the freezing of her age anyway).

    Generally, to adjust status, you must enter lawfully, have always maintained status, and never have worked without permission. The failure to maintain status and unauthorized work bars are waived for the spouses, parents, and minor children of US citizens.

    If she was younger--let's say, 8, then the advice would be for you to become a citizen and then she would have no problem adjusting status in the US. However, if you become a citizen once she is over 21 then it would erase the age reduction benefits for her and she would have to wait a long time to immigrate.

    So, consular processing is the only option. She should make sure to act quickly.

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