from DACA to EB3 Visa
 

hello, has anyone adjusted their status from DACA to EB3 Visa ? Could you please share your experience ?

Re: from DACA to EB3 Visa
 

Well what's your situation, basically there's 4 cases where you can do this:

1. 245(i) grandfathering - Do the labor cert and then you just straight up file for AOS, include I-485 supplement A, pay the $1000 fine, and adjust
2. Have a USC/LPR Spouse and/or Parents - Do the labor cert, do a standalone I-140, upon approval you pay the DS-260 filing fee, file I-601A, upon approval you finish DS-260, get your consular interview date, leave, do the consular interview, get your immigrant visa, and come back
3. Got DACA before turning 18.5, filed for DACA before turning 18, or
4. D/S overstay (F, J, M visas admitted for D/S) - basically these one relate to being in a situation where you didn't accrue either any or enough unlawful presence to trigger a re-entry bar. Same situation as #2 except that you do not need an I-601A. Bring evidence that you had DACA or that you were a D/S overstay and USCIS never caught onto the fact.

Re: from DACA to EB3 Visa
 

Where did you got this info from ?

Re: from DACA to EB3 Visa
 

Years of experience. Make your life easier and just assume that I know everything regarding US immigration law.

What prevents you from adjusting is INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8), which basically state can't adjust after falling out of status.

So how do you get around it?

First one is INA 245(i) which requires you or a parent (if you were under 21 and unmarried) or a spouse at the time to get sponsored in any category on or before April 30th 2001. INA 245(i) allows you to adjust regardless of an EWI or any overstay.

Second one is the hardship waiver - basically you can't adjust so you have to do consular, but if you lived in US illegally (under most circumstances) leaving would trigger a re-entry bar under INA 212(a)(9)(B). So for that you need a waiver and for the waiver you need a US Citizen or LPR, Spouse and/or parents.

Third and forth come from the quirks in how unlawful presence is calculated, which are entries in the USCIS Policy Manual and DOS Foreign Policy Manual, I can find you the citations if you really want them.
Basically while under deferred action you do not accrue unlawful presence, similarly you not accrue unlawful presence after overstaying a D/S admission until USCIS or an immigration judge finds that you've violated your terms of admission, this will only happen if you apply for something like AOS with USCIS and get denied or you end up in removal proceedings and the judge orders you removed from US. So anyways, in this case if you end up with less than 180 days of unlawful presence then there's no bar, you leave, don't get banned for re-entry, do the consular interview, probably argue a bit with the staff there how unlawful presence bars actually work, get your immigrant visa, and get back to US.

Re: from DACA to EB3 Visa
 

i immediately trusted u when i saw 18.5 instead of 18

that level of detail tho

Re: from DACA to EB3 Visa
 

Hi Demise, if I am an overstay and I entered WITH inspection, do I still need a hardship waiver and need to go out of the country to do an interview when adjusting via citizen spouse? Or does the counselor interview outside of the US only applies to folks that entered WITHOUT inspection?

Thanks

Re: from DACA to EB3 Visa
 

In this case you generally can just straight up file I-130/I-485/I-765/I-131/I-864/I-693 and adjust without leaving or needing any sort of a waiver. Overstay is basically forgiven in cases of immediate relatives of US Citizens (spouse, parents, unmarried children under 21), or in more strict terms the bar to adjustment in 245(c)(2) outright exempts them.

An exception to the above is if you entered in C, D, TVOW, or K-1 or K-2 and you or parent didn't marry the petitioner. In this case you can't adjust in US, so you'll have to proceed as if you were to enter without inspection (do the waiver and do the consular interview).

If you entered in J status then you should check if you are subject to foreign residency requirement. If no you're fine, if yes you will need either a non-objection statement from the government of your country of origin or you'll need an I-612 waiver.

Re: from DACA to EB3 Visa
 

Demise,

you mean under 21 unmarried children right? My mom is about to be a citizen but I'm 31 (unmarried).

Re: from DACA to EB3 Visa
 

Yes, sorry, under 21 and unmarried.

You being 31 and unmarried you'd fall under F1 category. She can still petition you (she can do it now in F2B if she hasn't already), once the priority date becomes current you would need an I-601A. Alternatively you could seek employment sponsorship or play the DV lottery if you're from an eligible country and still use your USC or LPR mother as a qualifying relative for an I-601A.

Re: from DACA to EB3 Visa
 

Please tell me how the F david dobrick got his green card when he is DACA just the same. There has to be some expensive loophole that he used to get it.