AOS after AP for relative whose priority date for filing has been met.

[anonymous_247365 0]

Hi! please remove if this is the wrong section. I hope I can get some opinions on my friend's situation.

• He has an approved I-130 petition. Family based, F1 unmarried son of US Citizen. Priority date for "filing" AOS has been met, his I-130 was approved in 2005 and has not left the country since.
• DACA since 2013
• No criminal record, and always lawfully admitted into US.
• Visa overstayed after high school but was later inspected and admitted in 2004
• Always employed since 2013, 40 credits reached.
• He has applied for Advance Parole (via DACA), expecting approval in Feb/2024.

The question... is AOS viable after successfully getting paroled next year?

Thanks.

Edited November 19, 2023 by anonymous_247365
Bullet formatting.

[Boiler 43,873]

How is he going to adjust? He does not have status to adjust from. It sounds  like he entered on a non immigrant visa and has been out of status for many many years. DACA is not a status.

 

He could adjust through marriage to a USC as he was inspected and overstays are forgiven.

[anonymous_247365 0]

Can a I-601 waiver due to hardship to the USC relative help ?

Edited November 20, 2023 by anonymous_247365

[Boiler 43,873]

If it is needed then it would be essential.

[anonymous_247365 0]

His parent suffers from osteoporosis, and is unable to drive, would that be reason enough to file for a waiver so he can file for AOS in the US? 

[Boiler 43,873]

You cannot waive something that is not possible.

[Demise 1,140]

11 hours ago, anonymous_247365 said:

His parent suffers from osteoporosis, and is unable to drive, would that be reason enough to file for a waiver so he can file for AOS in the US? 

How old is he and when was the I-130 filed (i.e. what's the priority date on it)? Also how did his parents get their paperwork sorted?

 

Well there's 3 options here and what to do depends on what the actual case :

1. Got DACA before turning 18 and 180 days old. Basically in this case he would not have enough illegal presence in US to trigger a re-entry ban and would be able to leave US, attend a consular interview abroad, grab his F11 visa, and come back as a permanent resident.

2. 245(i) - To qualify under this he or a spouse/parent while unmarried and under 21, would have to been petitioned in any family or work immigrant classification, or had a PERM labor certification filed for them, on before April 30th 2001, the primary beneficiary of the petition must've been physically present in US on December 21st 2000 if the petition was filed on or after January 15, 1997, the petition/certification was approvable when filed. In case of this he could just straight up adjust in US, just have to include evidence of 245(i) eligibility, include I-485 supplement A, and pay the $1000 penalty fee.

 

If this applies or you think it might apply, I can follow up on what he'd need to include. This does include cases where one aged out of parent's petition as long as the petition allowed derivatives (so no IR).

 

3. I-601A waiver. Well, he's definitely got a citizen parent so the question basic question of eligibility is already solved. Get a good lawyer who does hardship waivers and see what they can come up with. "Extreme hardship" is a hard standard to prove but far from being insurmountable. If that gets approved then he'll need to leave US, attend a consular interview, get his F11 visa, and come back as a permanent resident.