Petition for Unmarried Son of Permanent Resident with unlawful status

[Hubi1997 0]

Hi all,

 

I am currently a holder of DACA. My mom just became a Permanent Resident and is getting ready to file an I-130 to petition me. We are filing the form online and there is a question that we don't know how to answer. The question asks to provide either a USCIS office that the beneficiary will apply for AOS or a US Consulate/Embassy at which the beneficiary will apply for a visa. 

 

A little context to my situation:

I came to the United States in 2002 on a B-2 visitor visa. I overstayed my visa and my status lapsed so therefore I currently have unlawful status which would prevent me from adjusting in the US once my I-130 is approved and my priority date is current. I did however receive DACA before I turned 18 and have continuously maintained it without interruptions, which clears me from having any unlawful presence. 

 

So for the question asking to provide either a USCIS office or US Consulate/Embassy, which shall I put since I am already in the U.S. but will not be able to apply for AOS once my priority date is current and will most likely have to go to my home country to complete the process?

 

I hope this makes sense and I appreciate feedback!

Edited January 3, 2022 by Hubi1997

[nastra30 2,287]

I'm assuming you are 21+ years old? 

Depending on your country of birth, it could take 7+ years for priority date to become current. If you anticipate being in the US for that many years until a visa number becomes available, you can choose 'will apply for AOS'. Otherwise, choose at consulate.

As you know DACA is still being fought in the courts and in congress so things can change at anytime.

[Boiler 45,522]

You have to be in status to adjust status and DACA is not status.

 

Best bet would be to marry a USC where you do not need to be in status to adjust.

[Hubi1997 0]

4 minutes ago, nastra30 said:

I'm assuming you are 21+ years old? 

Depending on your country of birth, it could take 7+ years for priority date to become current. If you anticipate being in the US for that many years until a visa number becomes available, you can choose 'will apply for AOS'. Otherwise, choose at consulate.

As you know DACA is still being fought in the courts and in congress so things can change at anytime.

Yes I am over 21. I’ve lived here my whole life so I definitely do not plan on going back.
 

I guess my question is is I put “will apply for AOS” does that bind me to just adjusting here or will I be able to continue the process with consular processing as my unlawful status will not allow me to adjust in the US? 

[nastra30 2,287]

24 minutes ago, Hubi1997 said:

Yes I am over 21. I’ve lived here my whole life so I definitely do not plan on going back.
 

I guess my question is is I put “will apply for AOS” does that bind me to just adjusting here or will I be able to continue the process with consular processing as my unlawful status will not allow me to adjust in the US? 

I think since you were inspected and admitted on B2 visa before you accrued unlawful presence and subsequently received DACA before 18, you might not need I-601A waiver so you should be able to adjust without leaving the US.