The daughter was interrogated last time she came over on VWP from Europe because she continued to come every 3 months for the full 90 days with obvious immigrant intent because her brother and her mother have both immigrated here recently. After she had been here for 60 days they consulted a lawyer and filed an I-130 for her to stay.

Anyway for a while she worked here illegally but then got sick of the fact that she couldn't work legally for the 3 years it would take to get her I-130 approved, and as she was then in a relationship with someone in Europe, returned there and got engaged.

The engagement didn't work out and she is saying she will now come back on the VWP and basically stay here permanently. (she has been gone about one year)

I thought once you had filed an I-130 and were out of the country you had to stay out of the country until you got a visa number and the visa had been processed (which in her cause would be about 6 years from now). Bottom line - she doesn't want to wait 6 years and if looking for ways to circumvent the system (no I'm not asking for help in doing it - I totally disagree with it and am trying to see how USCIS/Immigration will rveie wthis when she does arrive here). She has actually booked her ticket for July 7 - stupid, stupid, stupid!!!


1) is my understanding of the I-130 process wrong?
2) I can't believe they would let her in on the VWP again, especially since she had such difficulty last time and they will see a pending I-130 application in their database

ANy thoughts on how this whole debacle will be viewed? Any suggestions or words of advice?

Thanks

Once the I-130 is approved, she would have to interview in her home country. If she has accumulated three years of illegal presence here waiting for approval of the I-130, she would then face a ten year ban on entry due to the illegal presence. Yu had better talk to that lawyer again.
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The unmarried daughter of a US citizen is not an immediate relative for immigration purposes.

Working illegally will also place a bar on entry.

In family preference cases, even when I-130 is approved, if beneficiary is in the USA, he/she can't work legaly before he/she receives EAD (which can only be filed for with the form for adjusting status, once visa number is available - 5,6 years from filing). In addition,daughter should keep in mind that she would not be allowed to adjust status in the USA because:
a) she entered on VWP
b.) she wouldn't have a legal status to adjust from once her turn comes

so, if she comes and stays beyond the allowed date, she would only be accumulating illegal presence... that would bar her from getting an immigrant visa in her home country.

What are her chances to be admitted? I can't say from your post if she overstayed the last time she was here or not (in addition to working illegaly).

One can visit the USA when I-130 (or visa process) is pending.

She can not use the VWP to enter and is very unlikely to get a B2 visitor visa.

When she was here before, she overstayed her VWP because she was intending to immigrate here then. So, she overstayed and worked illegally.

She filed the I-130 within 60 days of arriving so as not to arouse suspicion, but I'm not sure how she could do that because someone else said she cannot adjust status from VWP. What is the I-130 for if not to adjust status?

Her mother also came on the VWP two years before and she filed an I-130, again after 60 days presence to avoid suspicion which was approved without her going back to her own country for interview and she now has her greencard.

Would the process/likely outcome be different for the daughter who intends to immigrate if she had filed an I-130 using her brother who may be a citizen as the sponsor? Could she then legitimately file an I-130 after entering on the VWP and just stay here permanently without going back to her home country for interview?

She told me that she had phoned the London Embassy and they had told her she would be ok to enter the US on the VWP even though she has an I-130 pending. Am I correct to assume that is not necessarily the case and that although she is ok to travel, once the immigration agent at LAX sees she is entering on VWP with a pending I-130 she will in all probability be turned away? If so, does her being turned away after having tried to enter then trigger the 3-10 year ban because of her previous illegal presence and illegally working?

Sorry for all the questions, but trying to save her $1500 for a plane ticket if the odds are strongly against her!

Thanks for your input.

The Consulate answer is correct, she is ineligible to use the VWP for all the other reasons mentioned.

She can try, she might get lucky. It is after always down to the PoE, a long shot and a long way back.

You need to look up what an I-130 is for, you seem confused.

The US Citizen files the I-130 to establish elgibility for the intended immigrant. The I-485 is to adjust status, which is filed by the immigrant after the I-130 is approved.

There is no legal basis for her to file for adjust of status.

The mother..who knows how she did it..maybe it was based upon marriage to a US Citizen...but with what you have posted, nothing makes sense.

If she overstayed more than 6 months, she has at least 3 year ban on returning. She can't use VWP, nor she will be issued a tourist visa within that period.
Her mother filed I-130. With I-130 one states that he/she is eligible (as USC or PR) to sponsor certain person because that person is related as spouse, parent, child... Approved I-130 means, yes - law allows you to sponsor this particular person... It has nothing to do with the beneficiary's eligibility to immigrate or adjust status.
Law prohibits adjustment of status of those who entered on VWP. Exception is made for immediate relatives (spouse, parent and child under 21 of US citizen)
No, brother is not "an immediate relative" for immigration purpose
As said, one can visit USA while I-130 is pending. Normal rules apply: one has to be prepared to show strong ties to home country and intent to leave the USA after the visit...
However, in this case, there is much more to it... did she disclose to the person she talked to that she overstayed?
The ban started when she left last time...

1. she can't just come (even for a visit) as she most likely (you did not say how long she overstayed) has a ban
2. there is already a suspicion of her immigrant intent
3. arriving as a tourist with the intention to stay is illegal and ground for the denial of adjustment of status...and
4. if she enters on VWP, she is not eligible for AOS anyway
5. + by the time her priority date becomes curent (she can file for AOS), she will be out of status and accumulate overstay again. One (in her immigrant category) can't adjust status if he/she has no status.

What are the odds this will work for her in a long term? The way the law is: none

The best course of action: sit and wait in her home country by the time she is eligible to apply for an immigrant visa based on her mother's petition. If she has a 3 year ban, it will be over by then. If she has 10 year ban, she may be eligible for a waiver at that point.

It seams to me that their lawyer did not explain eveyrthing to them (or did not know about it) or mother and daughter hear only what they want to hear; and don't take into the account the whole picture and consequences.

Daughter now has a not so clean record with USCIS and that will have an effect on every and any course of action they may come up with.