DACA to greencard from parents petition question

Hey guys!

Can anyone please give guidance on my brother's situation?

Brother came in on a visa and overstayed. He has DACA granted when he was 17. He's 19 now.

Parent petitioned him for greencard which is currently on process and I-130 will probably be approved later this year.

Do you guys know how he could go about applying for greencard after that? I read somewhere he has to have consulate interview but what does he need to do so that the 3-10 years ban won't take effect when he applies for the immigrant visa?

If you guys have been through or have knowledge how to go about this, I'd appreciate any input.

Thanks!

If you are Mexicans be ready to wait 20 years.

That's his only option, consular processing, he can try to use AP to go to his consular interview and when his visa is granted come back and pick it up. It can take a while if you're a Mexican, Philippine, or Chinese national; upwards of 20+ years

I'm confused. What's your parents' legal status? Are they citizens?

First and foremost you should contact a lawyer. There are many that give free consultation.

I am not a lawyer, but I believe if you receive DACA before you are 18, you will not accrue any unlawful presence. Therefore you will not be subject to a ban.
Read here: https://my.uscis.gov/helpcenter/sear...tag=tag_search

Since your brother is under 21, he is still considered a child. The waiting time depends on whether your parents are US citizens or permanent residents:

1) If they are citizens, he doesn't need to wait at all! Or if your parents can become citizens before your brother turns 21, he can get his visa as soon as they are naturalized!

2) If they are permanent residents, then you will need to wait for a visa to become available. The good thing is that your brother is still under 21. The current visa bulletin for Mexico shows that people who got filed their petition in August 15 2014 can get their visas now. So the wait time is not bad at all. It's less than two years.

Here is the visa bulletin site:
https://travel.state.gov/content/vis...-may-2016.html

The category for your brother is F2A: Spouses and Children of Permanent Residents.

So overall it looks like your brother has a good chance to get a green card, however, you should check with lawyer. This is just an understanding of the things I have read.

Okay. Are your parents US citizens, or not. If not, how did the parent(s), obtain their permanent residency?

Now, if they are citizens, then as soon as the I-130 is approved, he'll file for adjustment of status. Unmarried children under 21 are immediate relatives, same as spouses, and parents of US citizens. Therefore they fall under the more preferential rules when it comes to adjusting status, where one only needs to have entered US legally, and not be otherwise inadmissible to adjust status (ie. lack of status doesn't prevent adjustment).

If the sponsoring parent is a permanent resident:
1) If that parent can, and does naturalize before your brother turns 21, then your brother's F2A petition will be upgraded to an immediate relative petition and he'll be able to adjust status in US.

2) If the parent won't be able to naturalize before your brother turns 21. Then counter-intuitively, the longer the I-130 takes the better. This comes from the Child Status Protection Act, which allows you to credit the time the I-130 was pending, against the actual age. For example: If the I-130 was pending 18 months, your brother needs to be under 22 years and 6 months old on the day the I-130 is approved, or priority date becomes current, whichever is later. As opposed to the normal age of 21.

So let's say that your parent filed the petition in March, and it'll be approved in September. That's 6 months of I-130 pending. As long your brother is under 21 and 6 months old when his priority date becomes current he'll be eligible to get him immigrant visa.

He will not be eligible to adjust status in US, therefore he'll have to depart US, and undergo consular processing. The 3/10 year bans won't trigger because time spend in DACA doesn't count for that. He got his DACA while he was 17, therefore he has 0 days of unlawful presence for purposes of said bans. Note, however that this holds true only as long as DACA is around, so if let's say Trump wins and ends it, then it's best for your brother to depart and wait out the remainder of the backlog in his country of origin.


Also few other things:
1) If your parent obtained their permanent residency via marriage to a US citizen, and that marriage took place while your brother was under 18, and the marriage is still ongoing, then your parent's spouse can sponsor your brother as their step-child. Your brother will be eligible to adjust status in US that way.
2) If your parent got their permanent residency via a preference category, and adjusted via 245(i), then brother should be either able to adjust under 245(i) himself, or apply for an immigrant visa abroad, as a follow-to-join.