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DACA recipient and Consular Processing.

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  • DACA recipient and Consular Processing.

    I need some help/advice. My daughter came in 2003 with a B2 visa, have DACA since she was 17, now is 19 years old. My wife made a petition (I-130) which was approved. The NVC send us letter to start consular processing. It is my understanding that she can not apply for AOS since falls in F2 category. I was told that the time she was under 18 do not count as unlawful presence and and although she is 19 now DACA gives her lawful presence. Base on this, Is she triggering the 3/10 bar or not? What are the odds of getting her visa denied back in our country if we decide to proceed with the consular processing? Does she needs a waiver (601)? I will appreciate all the help. Thanks.

  • #2
    She does not accrue "unlawful presence" for the purposes of this ban while under 18. She also does not accrue "unlawful presence" while on DACA. Since she got DACA before she turned 18, and has it continuously until now, she has not accrued a single day of "unlawful presence", and will not trigger a ban upon leaving the US. Without a ban, she should have no problem getting an immigrant visa. She does not need a waiver.

    This is my personal opinion and is not to be construed as legal advice.


    • #3
      That was my initial thought, but you know, I've heard so many stories, and as a parent I am a little concern, specially because she is in college now. Besides the fact that she came here when she was 2 years old and never leave the US afterward. Thanks for your comments. We have a lawyer but still need some affirmation.