Stepdaughter just turned 17. Dad became citizen in December. Step's I-130 approved while I was LPR. Can I concurrently update her to immediate relative and file I-485? She was EWI from a very young age. Or do I have to file 601A for her? Help. So confused and anxious.
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She entered illegally, so she's not eligible for AOS (there are some exceptions but I won't go into that).
She hasn't accrued any "unlawful presence" for the purposes of the 9B ban yet, because one does not accrue "unlawful presence" for the purposes of the 9B ban while under 18. (Furthermore, as she came at a young age, she is probably on, or eligible for, DACA, and she would also not accrue "unlawful presence" even over 18 when on DACA.) So she does not trigger a 9B ban if she leaves the US now. Thus I-601A is not applicable. I am assuming she only entered the US once so we don't have to consider things like the 9C ban.
Basically, she would leave the US, consular process for an immigrant visa, get it and immediately come back without needing a waiver or anything else. She should make sure to leave the US no later than 180 days after DACA ends if she's on DACA, or no later than 180 days after turning 18 if she's not on DACA, in order to not accrue enough "unlawful presence" to trigger a ban.
What is the situation with the petition now? Is it still waiting for a visa number to become available? Upgrading it to Immediate Relative category will make a visa number available immediately, which will speed it up if it's in the waiting stage.
This is my personal opinion and is not to be construed as legal advice.
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