DACA and Consulate Processing Question

[HRQX 4,145]

1 minute ago, Future Us Citizen said:

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

Read the Department of State Foreign Affairs Manual:

On 6/12/2021 at 6:56 PM, HRQX said:

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.

 

https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility "Minors: Children do not accrue unlawful presence while they are under age 18."

[Future Us Citizen 1]

5 minutes ago, HRQX said:

Read the Department of State Foreign Affairs Manual:

 

https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility "Minors: Children do not accrue unlawful presence while they are under age 18."

Luv she will need it...Trust me...She can't just go to the interview, she will be bared from coming back...if she traveled with her daca even if it got cut off today, she would be able to obtain permanent residence in the us...She came illegally that's a whole different situation

Edited June 17, 2021 by Future Us Citizen

[HRQX 4,145]

2 minutes ago, Future Us Citizen said:

She came illegally that's a whole different situation

Form I-601A is not needed. https://fam.state.gov/fam/09FAM/09FAM030209.html

9 FAM 302.9-2(A)  (U) Grounds

(CT:VISA-272;   12-20-2016)

(U) INA 212(a)(6)(A) provides that an alien who is present in the United States without being admitted or paroled, or who arrives in the United States at an undesignated time or place is inadmissible.

9 FAM 302.9-2(B)  (U) Application

(CT:VISA-543;   03-27-2018)

(U) INA 212(a)(6)(A)(i) does not apply at the time of visa application because it applies only to aliens who are either present or arriving in the United States.

[Future Us Citizen 1]

Daca or tps don't give lawful status or as stated in adjustment status under the 245 Ina

[HRQX 4,145]

4 minutes ago, Future Us Citizen said:

Daca or tps don't give lawful status or as stated in adjustment status under the 245 Ina

That part is correct; I didn't state otherwise. DACA and TPS do grant "period of stay authorized by the Secretary of Homeland Security"

 

OP and @Maria97! would do consular processing, not adjustment of status. Form I-601A not needed for their consular processing.

5 minutes ago, HRQX said:

https://fam.state.gov/fam/09FAM/09FAM030209.html

9 FAM 302.9-2(A)  (U) Grounds

(CT:VISA-272;   12-20-2016)

(U) INA 212(a)(6)(A) provides that an alien who is present in the United States without being admitted or paroled, or who arrives in the United States at an undesignated time or place is inadmissible.

9 FAM 302.9-2(B)  (U) Application

(CT:VISA-543;   03-27-2018)

(U) INA 212(a)(6)(A)(i) does not apply at the time of visa application because it applies only to aliens who are either present or arriving in the United States.

Edited June 17, 2021 by HRQX

[Future Us Citizen 1]

5 minutes ago, HRQX said:

That part is correct; I didn't state otherwise. DACA and TPS do grant "period of stay authorized by the Secretary of Homeland Security"

 

OP and @Maria97! would do consular processing, not adjustment of status. Form I-601A not needed for their consular processing.

She can only do consular processing luv... But to tell her to go to her interview without the waiver is setting her up not to return...God bless America and everyone in it, please I am not a lawyer, please seek advice from an lawyer my friends...God bless you all

[Demise 1,283]

Okay so that weird broken thread was broken off from here. In this case lawful entry won't really matter. INA 245(a) requires a legal entry but the problem rests in INA 245(c)(2) - ineligibility to AOS due to failure to maintain continuous lawful status. That ineligibility is not applicable in immediate relative cases (spouses, unmarried children under 21, and parents of US Citizens), but since OP is being petitioned in either F2A or F2B they cannot do AOS due to this, so consular processing is the way to go and here we loop back to the matters of unlawful presence where luckily due to DACA they have none so no need for an I-601A.

Moreover, the inadmissibility for an EWI found in INA 212(a)(6)(A)(i) is both a dead letter (since it conflicts with things that do permit AOS after an EWI like 245(i) and VAWA adjustment found in INA 245(a)) and only applicable while the applicant is in US, essentially it is cleared upon departure and not a further factor for consular processing. Hardly applicable since OP is an overstayer but I figured I will address it while we're all here.

@HRQX

@Future Us Citizen

Edited June 17, 2021 by Demise

[Chancy 6,241]

2 hours ago, Future Us Citizen said:

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

 

Are you also DACA?  Did you come to the US as a minor child?  If not, your circumstances are different from the OP and what's right for your case may not apply to the OP's situation.

 

[Maria97! 0]

6 minutes ago, Chancy said:

 

Are you also DACA?  Did you come to the US as a minor child?  If not, your circumstances are different from the OP and what's right for your case may not apply to the OP's situation.

 

Yes I’ve been under DACA since age 17yrs. I came to the USA when I was 8yrs.

[Maria97! 0]

On 6/16/2021 at 10:56 PM, Demise said:

Okay so that weird broken thread was broken off from here. In this case lawful entry won't really matter. INA 245(a) requires a legal entry but the problem rests in INA 245(c)(2) - ineligibility to AOS due to failure to maintain continuous lawful status. That ineligibility is not applicable in immediate relative cases (spouses, unmarried children under 21, and parents of US Citizens), but since OP is being petitioned in either F2A or F2B they cannot do AOS due to this, so consular processing is the way to go and here we loop back to the matters of unlawful presence where luckily due to DACA they have none so no need for an I-601A.

Moreover, the inadmissibility for an EWI found in INA 212(a)(6)(A)(i) is both a dead letter (since it conflicts with things that do permit AOS after an EWI like 245(i) and VAWA adjustment found in INA 245(a)) and only applicable while the applicant is in US, essentially it is cleared upon departure and not a further factor for consular processing. Hardly applicable since OP is an overstayer but I figured I will address it while we're all here.

@HRQX

@Future Us Citizen

So just to confirm would not need the I-601a? 
and how would I reschedule my interview if I do need it? 

[Chancy 6,241]

On 6/17/2021 at 12:54 PM, Maria97! said:

Yes I’ve been under DACA since age 17yrs. I came to the USA when I was 8yrs.

 

I was actually asking Future Us Citizen.  Already clarified in another thread that she is not DACA and not married to a US citizen.  Her situation is different from yours and OP's.

 

[HRQX 4,145]

1 hour ago, Maria97! said:

So just to confirm would not need the I-601a?

That is correct, that form is not needed: https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility "Minors: Children do not accrue unlawful presence"

[Maria97! 0]

On 6/16/2021 at 9:36 PM, Future Us Citizen said:

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

Did You have Daca as well? 

[HRQX 4,145]

1 hour ago, Maria97! said:

Did You have Daca as well? 

No, she has TPS: https://www.visajourney.com/forums/topic/765312-tps-and-aos-split/?do=findComment&comment=10479638 Assuming her initial TPS was granted after she was 18.5 years old then she needs Form I-601A for consular processing.

 

In your case, you don't need that form if you have properly renewed your DACA.

[Maria97! 0]

33 minutes ago, HRQX said:

No, she has TPS: https://www.visajourney.com/forums/topic/765312-tps-and-aos-split/?do=findComment&comment=10479638 Assuming her initial TPS was granted after she was 18.5 years old then she needs Form I-601A for consular processing.

 

In your case, you don't need that form if you have properly renewed your DACA.

Okay thank you for the information, I’m just super nervous and I don’t want to go without it if there’s a slightly chance they will not let me come back.