I-485 and DACA

[Esme]

Hello,
My mom (permanent resident) submitted a I-130 application for my sister when she was 17 yrs old. She has been a DACA recipient since she was 17 and has had a work permit until now without any lapse. Her I-130 just got approved today but the letter states that her application got routed to NVC for counsular processing. It states that she might not be elegible for adjustment of status. My sister entered the US legally and has a I-94 but overstayed her visa. We checked the bulletin and she can now apply for adjustment of status but we are worried that the letter says that she will need to leave the country to adjust status. She is currently a UCSB student and has a work permit valid until next year. Should we submit her I-485?

[DreamBig13]

Hello,
My mom (permanent resident) submitted a I-130 application for my sister when she was 17 yrs old. She has been a DACA recipient since she was 17 and has had a work permit until now without any lapse. Her I-130 just got approved today but the letter states that her application got routed to NVC for counsular processing. It states that she might not be elegible for adjustment of status. My sister entered the US legally and has a I-94 but overstayed her visa. We checked the bulletin and she can now apply for adjustment of status but we are worried that the letter says that she will need to leave the country to adjust status. She is currently a UCSB student and has a work permit valid until next year. Should we submit her I-485?

I was on the same boat. I?m a DACA recipient....but when my mom became a permanent resident I was out of age and was not able to get permanent residency at the same time as hers. We asked our lawyer if we could adjust my status through my mom and he said yes, however, I will need to leave the country to adjust because my mom was a permanent resident. I also came to the US with a tourist visa, have a I-94 and overstayed for 15 years. He said he didn?t suggest it cuz it?s risky....they can take years to give you a decision, more over, they can denied it and you will be stuck over there. He suggested it to adjust through my husband who is a US citizen and I wouldn?t need to leave the country to adjust since I entered legally and he?s a US citizen.

[newacct]

Hello,
My mom (permanent resident) submitted a I-130 application for my sister when she was 17 yrs old. She has been a DACA recipient since she was 17 and has had a work permit until now without any lapse. Her I-130 just got approved today but the letter states that her application got routed to NVC for counsular processing. It states that she might not be elegible for adjustment of status. My sister entered the US legally and has a I-94 but overstayed her visa. We checked the bulletin and she can now apply for adjustment of status but we are worried that the letter says that she will need to leave the country to adjust status. She is currently a UCSB student and has a work permit valid until next year. Should we submit her I-485?

No. As she is in a family-based category that is not the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), she is not eligible for Adjustment of Status if she is currently out of status or if she has ever been out of status in the past. So she is not eligible for AOS and she must do Consular Processing abroad. (There are some rare exceptions where she can do AOS, i.e. if she was the beneficiary of an immigrant petition filed before 2001; I'll assume that that doesn't apply.)

Based on your description, she will not trigger an unlawful presence ban when she leaves the US for Consular Processing, because she does not accrue "unlawful presence" for the purposes of that ban while under 18, or while she is on DACA, and since she got DACA before she was 18, and has had DACA ever since, she has not accrued a single day of "unlawful presence" so far.