Rete

OP does not say he filed an I-485. He only mentioned the I-130 which has been approved. Until OP clearly states the there is an I-485 pending, then he has not filed for her AOS.

christmasoompa

None of it is very clear at all. The OP says the I-130 has already been approved, which given the timeframes he's mentioned would mean it was approved in about 2 months.

S Folinsky

OK, I was it again. Also, I read your description again. Five months is longer than 90 days.

The actual call of OP’s inquiry strikes me as fairly narrow. It strikes me that OP may not be asking the proper question to address their concerns. Us legal types are trained in issue spotting, which can be tricky at times.

Rete

I agree with you. The OP's post is unclear. He is asking if the AOS would be abandoned if his daughter left the US now that her I-130 has been approved. He then states AOS would take a year or more. He does not say an I-485 for adjustment of status has already been filed and if it were, when it was filed or if he is going to now file it. Just because he asked about AOS doesn't mean that adjustment of status is pending which is the assumption everyone is taking.

Rete

He did NOT say an I-485 was filed. If it were filed along with the I-130 which is the way to adjust status if you are living inside of the US, then they should have been adjudicated together which is how it normally has been done for years.

Rete

Yes, there is this: : Children do not accrue unlawful presence while they are under age 18. Family Unity beneficiaries: Individuals with protection under the Family Unity program, as provided under section 301 of the Immigration Act of 1990, do not accrue unlawful presence while that protection is in effect.Jun 24, 2022

However, there is also this:

A Minor Could Be Arrested and Removed From the U.S. on the Basis of an Overstay. A minor who is in the United States beyond the expiration date of a permitted stay under a non-immigrant visa is at risk of being arrested by the immigration authorities and placed into removal proceedings.

She entered under the VWP which is 90 days. A filed I-130 is not a petition that allows her to remain in the US while the petition is being adjudicated. So while is might not accrue overstay, she is in violation of the VWP and can be removed from the US.

S Folinsky

In these days of interview waivers, I can see a chain of adjudications. Also, correct me if my memory is faulty, is it not uncommon for petition approval to be followed by adjustment approval within a matter of days? Those CIS time estimates are not the best indicator of how long it’s going to take.

I wonder about the nature of the “emergency.” Also, I wonder if derivative acquisition of US citizenship enters into the equation?

Hence, good idea for legal consultation.

red_onion

I think we may have screwed up. I was under the impression that to get AOS approved we had to complete the form I-130, Petition for Alien Relative, which we did in order to qualify and then complete the form I-485. What we have received is an acknowledgement of the application and relative time of how long it will take to get approved, whatever that means at this point. What are our options?
Was I wrong to complete I-30 for someone who is adjusting status while in the country? Can I now file I-485? Would she still be considered an overstayer? What will happen to the I-30 application pending?

Thank you all. sorry for the confusion?

christmasoompa

From what you’ve said, she’s overstayed the VWP. On the plus side it means there’s no AOS to abandon when she returns to the UK.

I don’t know if her overstay will be forgiven because of her age or if she can never use the VWP again.

Again, I’d strongly suggest a consultation with a good lawyer.

LT1

I'm sorry to be blunt here, but yes, I believe you have screwed up here, big time. You should have submitted the I-485 concurrently with the I-130.

Leaving the USA is going to be a problem. As you didn't submit the I-485 while she was in status, she is now a visa overstayer and will likely be subject to a re-entry bar of three or ten years depending on how long she now overstays. She will never be able to use ESTA again, and I'd recommend she must not leave the USA for any reason until she has Green Card in hand.

Key question, are you a US Citizen or a GCH? Most people can't adjust status to GC from being out of status, but assuming you are a US citizen, then your daughter is an "immediate relative" and she will be able to adjust.

If it's absolutely critical that she leaves the US, you could in theory apply for Travel Parole. But she'd also need a way of getting back into the USA which I don't think she'd have as ESTA is no longer na option, and very unlikely she'd be given a visit visa, given the pending AOS.

Also, your first post says the I-130 was approved, but this recent post says you've only received an acknowledgement of the application and a time estimation of when it'll be approved. Which is it?

In summary, this is a major mess and you need a good immigration lawyer ASAP.

tht

If you read the previous posts it looks like the OP married a USC around 2017/2018 and moved here on a CR1. So he could be a USC by now in theory. Given the daughters age she must be from a previous marriage / relationship. Sounds like she came for the Xmas holidays and decided to stay?

Maybe the emergency is that mum called and said she needs to come home and go to school… or medical if she has no cover in the US…

Agree with others, OP go and pay a lawyer for good advice before doing anything else… getting this wrong could not only derail this process, but cause issues with her future ability to visit…. If it has not already…

S Folinsky

No need to apologize. Immigration law is a minefield and it is quite easy to step on those mines.

If you consult with immigration counsel, it is important that you consult with counsel who is competent and experienced. Just having a bar card is insufficient to gauge competence, knowledge and skill. I am of an age where my children and those of old friends are now middle aged. Several have lived the expat life and now wish to repatriate with their foreign spouse. Not too long ago, an old neighbor asked for help for their son and daughter-in-law living in France. Given that I am retired and am inactive on my bar membership, I gave them a referral to an attorney that **I** trust. Shortly after New Year, the son called me to thank me profusely. Not only was the attorney competent, he was able to hold their hands for their specific situation.

Good luck.

Rete

There are several options and while I usually advocate DIY methods, in this case I strongly suggest you consult with a well versed immigration attorney. With the receipt of the I-130 by the Service Center the process has started for your daughter to either complete the I-130 to the finish by returning to her own country and getting her Immediate Relative Visa at the US Consulate. There are many steps to this approach and it is lengthy. Or she can continue to live here and file the I-485 for her adjustment of status. This would entail you trying to have the two petitions joined so they are adjudicated together.

Frankly, I would not do anything until you have take advice from a good immigration attorney. And under no circumstances allow her to leave the US until you have that consultation.

Rete

No, you are correct. At one time, and believe it still is, customary that for intended immigrants living inside the US to file both the I-130 and I-485 and accompanying petitions all at the same time. Normally they are adjudicated together.

PetrifiedExPat

Trump and Melania?