Approved F2A minor in the US - Not Eligible for AOS - Requires Consular Processing

[worriedmom2000]

Hello Everyone,
I am a worried parent looking for answers. My children and I came to the US with tourist visa in 2002 and only able to find a legal way to adjust recently.
I am now a green card holder and petitioned my 16 year old daughter (F2A) who is currently in the U.S. with me. Petition was approved and all NVC processing and fees went through and finalized this year. She has since turned 18 in January 2018. We received her interview date schedule at the U.S. Embassy for February but her passport didn't make it on time so we had to reschedule for May 2018 interview, which is still acceptable as long as it is within a year. Since I have filed for this petition, it has always worried me that she needs to go home to our home country for the interview. The thought of her exiting the U.S. and not being able to return scares me, as any parent would be. I do have a lawyer that has assured me that as long as she doesn't have any criminal or health issues, she would be fine. She is also currently a DACA recipient and has not accrued lawful status since we came here. (18yrs old and below doesn't accrue unlawful status and DACA recipients).

My question is, I have asked a lot of lawyers already why she couldn't file for AOS and has not really been given concrete reply. Does anyone know why she is not eligible for AOS? Has anyone gone through this same situation? Did you and your child return to your home country for the consular processing and interview? How long does it take? I was told from date of interview we should receive her visa within 2 weeks. She is going to college this year and she needs to come back ASAP.

Please help me.....

[azblk]

Hello Everyone,
I am a worried parent looking for answers. My children and I came to the US with tourist visa in 2002 and only able to find a legal way to adjust recently.
I am now a green card holder and petitioned my 16 year old daughter (F2A) who is currently in the U.S. with me. Petition was approved and all NVC processing and fees went through and finalized this year. She has since turned 18 in January 2018. We received her interview date schedule at the U.S. Embassy for February but her passport didn't make it on time so we had to reschedule for May 2018 interview, which is still acceptable as long as it is within a year. Since I have filed for this petition, it has always worried me that she needs to go home to our home country for the interview. The thought of her exiting the U.S. and not being able to return scares me, as any parent would be. I do have a lawyer that has assured me that as long as she doesn't have any criminal or health issues, she would be fine. She is also currently a DACA recipient and has not accrued lawful status since we came here. (18yrs old and below doesn't accrue unlawful status and DACA recipients).

My question is, I have asked a lot of lawyers already why she couldn't file for AOS and has not really been given concrete reply. Does anyone know why she is not eligible for AOS? Has anyone gone through this same situation? Did you and your child return to your home country for the consular processing and interview? How long does it take? I was told from date of interview we should receive her visa within 2 weeks. She is going to college this year and she needs to come back ASAP.

Please help me.....

How did your daughter enter the US? How did you acquire your green card?

[worriedmom2000]

How did your daughter enter the US? How did you acquire your green card?

Hi,
We both entered with tourist visas. My step daughter who is a US citizen petitioned me for GC and I was able to adjust status without exiting, but it doesn't work the same for my 18 yr old daughter because I am petitioning her as a permanent resident. I am not a USC yet.

[azblk]

Hi,
We both entered with tourist visas. My step daughter who is a US citizen petitioned me for GC and I was able to adjust status without exiting, but it doesn't work the same for my 18 yr old daughter because I am petitioning her as a permanent resident. I am not a USC yet.

In that case she has to leave the country to complete the process in home country. Because you (sponsor) are a LPR - she has to be in a legal immigration status to adjust in the US and DACA is not considered a lawful status. The bright side is she just turned 18 and has DACA so she has no issues of unlawful presence bars.

[worriedmom2000]

In that case she has to leave the country to complete the process in home country. Because you (sponsor) are a LPR - she has to be in a legal immigration status to adjust in the US and DACA is not considered a lawful status. The bright side is she just turned 18 and has DACA so she has no issues of unlawful presence bars.

Thank you. You are very helpful. I have consulted with more than 20 community lawyers aside from my current one, and have had different opinions and responses so the more it confused me and feared me, if I was doing the right thing or not. You did mention DACA is NOT considered a lawful status, if that is the case, how does it help protect her from unlawful presence bars?

[newacct]

Thank you. You are very helpful. I have consulted with more than 20 community lawyers aside from my current one, and have had different opinions and responses so the more it confused me and feared me, if I was doing the right thing or not. You did mention DACA is NOT considered a lawful status, if that is the case, how does it help protect her from unlawful presence bars?

Unlawful presence and being out of status are two different things, with different definitions. For example, you can have violated your status before the date on your I-94, and you are out of status, but you do not start accruing unlawful presence until you stay past the date on your I-94, if there is one. Also, unlawful presence is defined so that you don't accrue it in certain situations even if you are past the date on your I-94, including when you are under 18 (for the purposes of the 9B ban), when you have a pending EOS/COS/AOS/asylum application, when you have deferred action (including DACA), etc. You can read chapter 40.9.2 of the Adjudicator's Field Manual for a detailed discussion on when someone accrues "unlawful presence" and when someone doesn't.

[worriedmom2000]

In that case she has to leave the country to complete the process in home country. Because you (sponsor) are a LPR - she has to be in a legal immigration status to adjust in the US and DACA is not considered a lawful status. The bright side is she just turned 18 and has DACA so she has no issues of unlawful presence bars.

Unlawful presence and being out of status are two different things, with different definitions. For example, you can have violated your status before the date on your I-94, and you are out of status, but you do not start accruing unlawful presence until you stay past the date on your I-94, if there is one. Also, unlawful presence is defined so that you don't accrue it in certain situations even if you are past the date on your I-94, including when you are under 18 (for the purposes of the 9B ban), when you have a pending EOS/COS/AOS/asylum application, when you have deferred action (including DACA), etc. You can read chapter 40.9.2 of the Adjudicator's Field Manual for a detailed discussion on when someone accrues "unlawful presence" and when someone doesn't.

With the unclear status of DACA right now, it is understood that anyone who has DACA cannot apply for advanced parole (which was originally allowed) or exit the country. With my daughter having both DACA and an approved F2A petition which are unrelated, can this be used against her during her consular processing and interview and gets questioned why she exited the country? She turned 18 in January, so she would be about 18 1/2 during interview and her DACA is valid until May 2019.

[newacct]

With the unclear status of DACA right now, it is understood that anyone who has DACA cannot apply for advanced parole (which was originally allowed) or exit the country. With my daughter having both DACA and an approved F2A petition which are unrelated, can this be used against her during her consular processing and interview and gets questioned why she exited the country? She turned 18 in January, so she would be about 18 1/2 during interview and her DACA is valid until May 2019.

Advance Parole is for returning to the US without a visa. DACA allowed people on DACA to leave and return to the US without having a visa and resume DACA. She is going abroad to apply for a visa. Advance Parole is not relevant.

By the way, someone either currently has DACA (it was approved for a given period) or they don't. If they have DACA, they have it until the expiration of that period, which is 2 years. There is nothing "unclear" about that, and the DACA does not go away unless it is revoked or it expires. People were simply not able to apply for apply for an initial DACA since Sep 2017, or to apply for a DACA renewal since Oct 2017 (although recently they are accepting renewals again), but that doesn't have anything to do with an existing granted DACA. They also stopped issuing APs for DACAs from Sep 2017 (it's not "understood", it was explicitly stated), but that doesn't affect the people's DACA itself. And your daughter is not seeking an AP anyway because she does not need it.

[worriedmom2000]

Advance Parole is for returning to the US without a visa. DACA allowed people on DACA to leave and return to the US without having a visa and resume DACA. She is going abroad to apply for a visa. Advance Parole is not relevant.

By the way, someone either currently has DACA (it was approved for a given period) or they don't. If they have DACA, they have it until the expiration of that period, which is 2 years. There is nothing "unclear" about that, and the DACA does not go away unless it is revoked or it expires. People were simply not able to apply for apply for an initial DACA since Sep 2017, or to apply for a DACA renewal since Oct 2017 (although recently they are accepting renewals again), but that doesn't have anything to do with an existing granted DACA. They also stopped issuing APs for DACAs from Sep 2017 (it's not "understood", it was explicitly stated), but that doesn't affect the people's DACA itself. And your daughter is not seeking an AP anyway because she does not need it.

Thank you again for all this and for your patience in answering my questions. I am sure there will be more and will understand if you get tired of me.
i hope not. I am wondering if this is an option, if we decide not to go through the interview at our home country this May; I will be eligible to apply for USC by
September 2020, she will be 20yrs old by then and will turn 21 on January 2021; Once my USC is approved, Can I file another family petition for her and she will be able to adjust without leaving the country since I am already a USC by then?

[newacct]

Thank you again for all this and for your patience in answering my questions. I am sure there will be more and will understand if you get tired of me.
i hope not. I am wondering if this is an option, if we decide not to go through the interview at our home country this May; I will be eligible to apply for USC by
September 2020, she will be 20yrs old by then and will turn 21 on January 2021; Once my USC is approved, Can I file another family petition for her and she will be able to adjust without leaving the country since I am already a USC by then?

Yes, but only if you actually become a USC (take the oath) before she turns 21.

[azblk]

Thank you again for all this and for your patience in answering my questions. I am sure there will be more and will understand if you get tired of me.
i hope not. I am wondering if this is an option, if we decide not to go through the interview at our home country this May; I will be eligible to apply for USC by
September 2020, she will be 20yrs old by then and will turn 21 on January 2021; Once my USC is approved, Can I file another family petition for her and she will be able to adjust without leaving the country since I am already a USC by then?

You will only have 5 months to apply for citizenship and become a citizen then apply for her before she turns 21 i think that is cutting it close. If this does not work out she would age out and that will push her to the back of the line. Also the Trump administration is trying to get rid of DACA and/or use its recipients as bargaining chips for greater immigration restrictions - so DACA maybe gone by then. She has a chance to get her green card now so you need to use it. Like your lawyer said unless there are criminal issues or health issues then she will not have a problem returning. And if these issues exist then she still wont be able to adjust even if you became a citizen.

[worriedmom2000]

Yes, but only if you actually become a USC (take the oath) before she turns 21.

Few of the lawyers told me this is not applicable to my case once i take oath --- USC parent petitioning child
Only USC child petitioning parent (like what happened to me) is able to do AOS unless the child is under 18 upon oath, she will automatically be a USC. They said that if I do this process, my daughter is not eligible for AOS either, she still needs to do the consular processing and again exit for interview at home country even though I am already USC and she is under 21.

[newacct]

Few of the lawyers told me this is not applicable to my case once i take oath --- USC parent petitioning child
Only USC child petitioning parent (like what happened to me) is able to do AOS unless the child is under 18 upon oath, she will automatically be a USC. They said that if I do this process, my daughter is not eligible for AOS either, she still needs to do the consular processing and again exit for interview at home country even though I am already USC and she is under 21.

If you are USC and she's under 21 and unmarried, she's in the Immediate Relative category. Immediate relatives are exempt from the bars to AOS for being out of status at the time of filing, and for having been out of status in the past, and even for unauthorized employment. This page summarizes it more clearly. There is no other basis that would make her ineligible for AOS; those lawyers must have been confused.

If she is over 18 when she becomes a permanent resident, she won't become a citizen automatically, but that is a completely separate matter.

[azblk]

Few of the lawyers told me this is not applicable to my case once i take oath --- USC parent petitioning child
Only USC child petitioning parent (like what happened to me) is able to do AOS unless the child is under 18 upon oath, she will automatically be a USC. They said that if I do this process, my daughter is not eligible for AOS either, she still needs to do the consular processing and again exit for interview at home country even though I am already USC and she is under 21.

This is not correct. If she was under 21 and unmarried by the the time you take the oath, she WILL be eligible for AOS. Your problem it seems is time is against you. If we go by average processing times for N400 it is very unlikely that you will be able to take your oath before your daughter turns 21.

[worriedmom2000]

Approved F2A minor in the US - Not Eligible for AOS - Requires Consular Processing

Hello Again. I am needing advice. I am now having 2nd thoughts of proceeding with the interview. My daughter is graduating High School in the U.S. and has been accepted to about 10 Universities so far and offered scholarships. i am scared that something may go wrong in our home country if we decide to go to the visa processing and she will waste all her hard work and not be able to come back.

And if it is approved, I am not sure, how soon it usually takes from the date of interview and courier mailing to actually have the passport and visa back in hands.
I only have 2.5 weeks timeline to be able to accompany my daughter home because of work. She still needs to do Medical before interview. would 2.5 weeks be enough between the Medical Exam, day of interview and waiting for the passport and visa in the mail?