DACA and Consulate Processing Question

[starwars82 4]

Hello everyone,

 

I'm a DACA recipient and I came to the US legally and overstayed the visa. Got my DACA since before 18 and consistently renewed, so I'm well aware I don't have any unlawful presence.

Now my mother (LPR) petitioned for me and I already got DQ with the embassy. Had to delay my interview because of Covid and got rescheduled for later this year.

My lawyer is already telling me everything is going to be okay and I should fly back to my home country and do the consulate interview. 

 

However, today while looking up the news I saw someone going back to Mexico to do consulate processing and got a 10 year bar as a result.

You can see it here. 

The news article did mention she was barred because of her initial illegal entry. 

Nonetheless, I'm now having second thoughts. I would assume my scenario wouldn't trigger the 10 year bar, right (at least theoretically)? 

[nelmagriffin 148]

Greetings!

Maybe you can enlighten me a little bit about your situation. Isn't that DACA was created back in 2012 for people brought to the US unlawfully as children the temporary right legally to live, study and work in America. I guess I was confused of how you even was qualified if you came in legally? If you overstayed then you might be facing a 10 year bar like what you fear. Something is not adding up.

 

 

[milimelo 4,481]

If you turned 18 and didn’t leave at 18 y 6 months it will be an overstay regardless if you were brought in as a child. Need to first do I-601a or I-212 and have it approved before going for consular interview. Hopefully your lawyer told you that. 

[Maria97! 0]

Hello! I have a question, I’m under DACA ever since I’ve been 17yrs old. I’ve been married to my husband who is a US citizen, we file the I-130 in 2018 and got approved and I just received my date for my interview in Juarez. However we didn’t know we had to file for the I-601a. We went to ask a lawyer and said we do have to. And I would have to call NVC and reschedule my interview. Does anyone know if that’s how it would actually work? Or any tips? 
 

Thank you. 

[HRQX 4,145]

On 6/1/2021 at 2:37 AM, milimelo said:

If you turned 18 and didn’t leave at 18 y 6 months it will be an overstay regardless if you were brought in as a child.

OP said DACA was granted before turning 18. If DACA was properly renewed then I-601A not needed: https://fam.state.gov/FAM/09FAM/09FAM030211.html

DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(1)  (U) For aliens inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:

(a)  (U) the expiration of the Form I-94 (or any extension); or

(b)  (U) a formal finding of a status violation made by DHS, an IJ, or the BIA in the context of an application for any immigration benefit or in removal proceedings, whichever comes first.

(2)  (U) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;

(3)  (U) For aliens granted "voluntary departure" (VD), pursuant to INA 240B, the period of time between the granting of VD and the date of their departure, if the alien departs according to the terms of the grant of VD;

(4)  (U) For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the From I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

(a) (U) the alien does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and

(b)  (U) the alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:

(i)     (U) that the application was subsequently approved; or

(ii)    (U) if the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous.

(5) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);  

(6)  (U) For aliens covered by Temporary Protected Status (TPS), the period after TPS went into effect and prior to its expiration; and

(7)  (U) For aliens granted deferred action, the period during which deferred action is authorized.

Edited June 13, 2021 by HRQX

[HRQX 4,145]

On 5/31/2021 at 9:01 PM, nelmagriffin said:

I guess I was confused of how you even was qualified if you came in legally?

DACA is also for overstays: https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions

 

Had no lawful status on June 15, 2012, meaning that:

• You never had a lawful immigration status on or before June 15, 2012*, or
• Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012;

[Demise 1,289]

On 5/31/2021 at 7:39 PM, SC97 said:

Hello everyone,

 

I'm a DACA recipient and I came to the US legally and overstayed the visa. Got my DACA since before 18 and consistently renewed, so I'm well aware I don't have any unlawful presence.

Now my mother (LPR) petitioned for me and I already got DQ with the embassy. Had to delay my interview because of Covid and got rescheduled for later this year.

My lawyer is already telling me everything is going to be okay and I should fly back to my home country and do the consulate interview. 

 

However, today while looking up the news I saw someone going back to Mexico to do consulate processing and got a 10 year bar as a result.

You can see it here. 

The news article did mention she was barred because of her initial illegal entry. 

Nonetheless, I'm now having second thoughts. I would assume my scenario wouldn't trigger the 10 year bar, right (at least theoretically)? 

https://www.lowellsun.com/2021/05/22/lowell-woman-banned-from-us-re-entry-among-immigrants-president-biden-calling-to-protect/

A bit more info on this case. She wasn't banned for an EWI or unlawful presence. EWI has no associated re-entry bar. Unlawful presence (either as a consequence of an overstay or EWI) does - 3 years for 180+ days and 10 years for 1 year+, but that doesn't include time spend in a "period of authorized stay" which includes DACA and time while under 18.

Her problem however was that she triggered the permanent bar under INA 212(a)(9)(C) for an unlawful re-entry, she EWI'd twice, first time at 6, second time at 10. The only waiver for this bar requires you to spend 10 years outside the US. While in US the only way to get around it is via cancellation of removal which is what she should've done.

 

 

On 6/1/2021 at 4:37 AM, milimelo said:

If you turned 18 and didn’t leave at 18 y 6 months it will be an overstay regardless if you were brought in as a child. Need to first do I-601a or I-212 and have it approved before going for consular interview. Hopefully your lawyer told you that. 

I know this site kinda sucks for anything other than spamming I-129Fs and I-130s but wrong. There's a difference between being an overstay and accruing unlawful presence. A 2 year old that overstayed a B-2 visa is an overstay but won't accrue unlawful presence until it turns 18. However, there are things that prevent accruing unlawful presence: e.g. those admitted for D/S until DHS, IJ, or BIA finds a formal violation of status, those granted voluntary departure for the period of authorized departure, those with pending change/extension of status or adjustment of status application, those covered by TPS, and finally those covered by deferred action including DACA. 9 FAM 302.11-3(B)(1)

Edited June 14, 2021 by Demise

[Future Us Citizen 1]

Your concern luv just make sure the daca don't expired or set to expire before you go to the interview..And if it's set to expire,,you have to apply for the i601A waiver..good luck and god is able

[Future Us Citizen 1]

On 6/12/2021 at 11:17 AM, Maria97! said:

Hello! I have a question, I’m under DACA ever since I’ve been 17yrs old. I’ve been married to my husband who is a US citizen, we file the I-130 in 2018 and got approved and I just received my date for my interview in Juarez. However we didn’t know we had to file for the I-601a. We went to ask a lawyer and said we do have to. And I would have to call NVC and reschedule my interview. Does anyone know if that’s how it would actually work? Or any tips? 
 

Thank you. 

How did you come to the u s?

[Maria97! 0]

3 minutes ago, Future Us Citizen said:

How did you come to the u s?

My parents brought me, we crossed the border illegally.

[HRQX 4,145]

5 minutes ago, Maria97! said:

My parents brought me, we crossed the border illegally.

As long as you haven't EWI'd twice or failed to maintain DACA after turning 18 then I-601A not needed; do attend your interview at Ciudad Juarez, though. See @Demise's post above.

Edited June 17, 2021 by HRQX

[Future Us Citizen 1]

4 minutes ago, Maria97! said:

My parents brought me, we crossed the border illegally.

Yes luv you will need the i601a..You never traveled since you got the daca?

[Maria97! 0]

Just now, Future Us Citizen said:

Yes luv you will need the i601a..You never traveled since you got the daca?

No never! 

[Future Us Citizen 1]

2 minutes ago, HRQX said:

As long as you haven't EWI'd twice or failed to maintain DACA after turning 18 then I-601A not needed; do attend your interview at Ciudad Juarez, though. See @Demise's post above.

Hmmm mmm..

[Future Us Citizen 1]

1 minute ago, Future Us Citizen said:

Hmmm mmm..

I disagree, I've been there and she will need the i601 A...From experience luv