HELP! LPR petition for DACA child under 21
 

This is regarding my brother. I was a DREAMER and became a citizen a few years ago. Filed a petition for my parents who became LPR 2 years ago. My mom filed the I-130 for my brother and, after 2 years, it's been approved. Visa will be available likely next month (as per the Visa Bulletin). He's turning 21, but he'll be okay thanks to the Child Status Protection Act.

Here comes the tricky part: My brother got DACA when he was 15-16 years old so technically he hasn't accrued unlawful presence. He entered the country legally (visa overstay) when he was 5-6 years old. But I know that DACA is in a tricky spot now, so...I don't know how risky it is (or not) to leave the country.

Next step would be the interview at the consulate. I have to do some more research regarding the waiver, but technically he wouldn't need it (?).

Any advice would be greatly appreciated.

Re: HELP! LPR petition for DACA child under 21
 

I am not a lawyer, but here is what I found on USCIS website:
"If your relative is already in the United States legally, he or she may apply to adjust status to become a permanent resident after a visa number becomes available using Form I-485, Application to Register Permanent Residence or Adjust Status".
Based on my understanding, your brother meets these requirements:
Under 21
Arrived legally in the US/ was inspected (Should have an I-94)
Having DACA means he never accrued unlawful presence

Having said that, it would not hurt to consult with an attorney.

Re: HELP! LPR petition for DACA child under 21
 

This does not apply to F-2A category, only to IR. Almost everyone else basically need to maintain continuous lawful status from the day they arrive to the day they file I-485.

Your brother will have to undergo consular processing (i.e. leave, go to consulate abroad, pick up his immigrant visa, and return). You are right however that he has been in a period of authorized stay during his entire adulthood so he won't get a 10 year bar if he departs.

Re: HELP! LPR petition for DACA child under 21
 

Now I'm having doubts, because under the eligibility criteria for the 245(a), it lists "unmarried children (under 21) of LPRs"

https://www.uscis.gov/policy-manual/...rt-b-chapter-2

It's on the table under "C. Eligible to Receive an Immigrant Visa"

Re: HELP! LPR petition for DACA child under 21
 

He would apply for an immigrant visa abroad. INA 245 does not apply in this case. INA 203(a)(2)(A), 203(h), and 204 are the parts you want to look at instead.

203(h) - aka CSPA does the following:
Time I-130 was pending is deducted off the child's age of the day their priority date comes current. From that day onward they have one year to "seek to acquire" permanent residence, which basically means file DS-260 with DOS. That will freeze his age permanently for purposes of this petition and it doesn't actually matter when he'll get the visa issued.

For instance lets take a hypothetical person named Joe.

I-130 for Joe was filed while he was 19.5. It took 1 year even for USCIS to approve the I-130. Backlog was 2 years. On the day priority date became current he was 21.5. This one year during which I-130 was pending can be subtracted from his age so now his age for purposes of this petition is 20.5. He has one year to file DS-260.

If you need something else to digest it, I recommend this calculator.
https://www.immihelp.com/immigrant-v...pa-calculator/

Re: HELP! LPR petition for DACA child under 21
 

Yes, his age isn't a concern (on the original post I mentioned it: "He's turning 21, but he'll be okay thanks to the Child Status Protection Act.")

Why doesn't INA 245(a) apply, though? (I had assumed it wouldn't until I read the link I posted on my previous post)

Re: HELP! LPR petition for DACA child under 21
 

Because 245(a) only applies when you file for adjustment in US. Since he was out of status he is not eligible to adjust so he'll have to do consular processing. Since he has to do consular proceeding INA 204 applies and not INA 245.