newacct

No. As I have said, there is no ban for "visa overstayer"; there is a ban for accruing a certain amount of "unlawful presence" and then leaving the US. She cannot have a 3-year or 10-year unlawful presence ban even if she leaves the US, no matter how long she has overstayed, because she cannot accrue "unlawful presence" for the purpose of the 3-year/10-year unlawful presence bans while under 18.

newacct

"AOS" stands for "Adjustment of Status", and I-485 is the application for Adjustment of Status. If she did not file I-485, then she never applied for AOS. I-130 is just the petition, which is filed for both people doing Adjustment of Status inside the US, and for people doing Consular Processing abroad.

Yes, you guys could have, and should have, filed I-130 and I-485 together, or filed I-485 while I-130 was pending. You did not have to wait until the I-130 was approved. Filing I-485 together with the I-130 or while I-130 is pending is allowed when a visa number is available for the category and priority date. And since she is in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), a visa number is always available.

Yes, she can file I-485 now, no matter how long she may have been out of status now. People who are in the Immediate Relative category do not have to be in status to file for AOS, and how many years they have been out of status makes no difference. They don't need any waiver or other special process. This would be the obvious choice if she were staying in the US. She can also file I-765 for EAD and I-131 for Advance Parole, both for free, together with her I-485. The EAD/AP take several months to get.

However, now that she needs to leave the US for an emergency, that adds complications. If one leaves the US while I-485 is pending, it automatically abandons the I-485 unless 1) the person was granted Advance Parole before leaving and return on that Advance Parole, or 2) the person maintained H1b/H4/L1/L2/K3/K4/V status until right before leaving, and return on the same type of visa. The latter is obviously not relevant for your daughter. Even if she files I-485 with I-131 for Advance Parole now, it would take several months to get the Advance Parole, which would be too long for the emergency. It is possible to file I-485, get the I-485 receipt number (by text if possible), and then try to make an appointment to apply for Emergency Advance Parole in person at a USCIS office. She can't apply for this right now; she needs to have a pending I-485 to qualify for Advance Parole, so it would still be a few days at least before you can get the I-485 receipt number to do this. Plus, they only grant Emergency AP for very urgent emergencies.

If she must leave the US without filing I-485, or she must leave while I-485 is pending without first being granted Advance Parole, then she would basically have no way of returning to the US to do AOS again. (She can't enter the US on most types of nonimmigrant visa with the intent to file AOS during that stay.) So she would have to switch to Consular Processing for an immigrant visa at a US consulate abroad. Since the I-130 is still pending, you should inform USCIS to change the I-130 from AOS to Consular Processing, so that they will send it to NVC after approval. (If you wait until the I-130 is approved, you would have to file I-824 to switch it from AOS to Consular Processing, which takes more money and time.) Since she is under 18, she would not have unlawful presence for the 3-year/10-year unlawful presence bans, no matter how long she stayed after her VWP expired, so she would not have triggered a ban upon leaving. So she should be able to get the immigrant visa with no problems once the process is complete.

(All of this assumes that she is not already a US citizen. Were you not a US citizen when she was born? Or did you not meet the physical presence requirements to pass US citizenship onto her at the time of her birth?)

Nutmegger

Perhaps this answers your question.

LT1

Yes, you're right, I'd overlooked this.

One other point to note though is until the I-485 is submitted (and receipted), she is in theory at risk of deportation? Highly unlikely I know, but worth calling out.

LT1

He only got his Green Card in 2018/2019. And we aren't for certain sure he's now a citizen. Which if he isn't, the whole plan was off from the start! So fingers crossed he's naturalized some time in the last couple of years...

newacct

Yes, she's deportable. And since she entered on VWP, she is not entitled to a hearing before she is deported. (And technically, even if I-485 is filed, she can still be deported. The normal remedy of having the AOS heard by the immigration judge in removal proceedings doesn't work in this case since she is not entitled to a hearing.) However, this is unlikely to come up since she needs to leave the US soon for an emergency.

Rete

As he noted he is not a born US Citizen as he married a USC and obtained a green card. The only way his daughter can now become a USC is if 1) she continues the I-130 process abroad and enters the US with an approved IR-1 visa in her passport or 2) she remains in the US and eventually adjusts status in the US to green card holder. At either one of those to points, she automatically becomes a US Citizen based on her naturalized parents US Citizenship.

BTW who filed the I-130? Red Onion or Red Onion's spouse?

S Folinsky

​​​​​​On what do you base that conclusion? I'm not too sure about that. Depends upon the facts. Legal consultation is in order.

LT1

His past posts on this forum.

Rete

If he is not a USC, his USC wife can petition for his daughter.

newacct

red_onion, can you clarify whether it was you or your spouse who filed the I-130, and whether that person is a US citizen or a permanent resident? Since your daughter entered on the VWP, she would only be eligible for AOS if she is in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen). If the I-130 petitioner is a permanent resident, she is not eligible to file I-485 based on that petition right now. In that case, she would either have to do Consular Processing, or the US citizen parent would have to file I-130 and with her I-485 filed based on that I-130 (but, again, I-485 might not make sense if she needs to leave soon).

red_onion

Hi Rete, Yes I am US citizen and I applied for her. from what I am reading it is ok to go ahead and submit I-485 form. Am I correct?

red_onion

Hello, yes I am a USC. I applied for her.

LT1

Yes, you can now file I-485 and list the I-140 receipt number in Part 2, Question 3. You should also apply for I-131 Advanced Parole Travel Document. HOWEVER, if she lives before the I-131 is approved, then that will abandon the I-485.

If she must go back to UK now, then I wouldn't file the I-485, and consider consular processing from the UK, once the I-130 is approved?

red_onion

Can she use VWP again?