Petitioning children with daca protection

[Jhon Pao]

Hi I'm petitioning my children that have Daca protection. I'm a naturalized citizen and have already sent in the form for their petitions.
They both fall under the f2b category as they are 21 and over and unmarried.
They both have work permits and social security cards from their Daca protection. And yes they both live in the states already.

My question is, when their applications are approved, how long will their waits be? Can their status be adjusted immediately?

[newacct]

Well now that you're a citizen they're in the F1 category (though you have the option of "opting out" back into F2B if that is more advantageous). The wait for visa numbers for F2B is actually currently slightly faster than for F1, but the difference isn't much and this may change in the future. You can check the visa bulletin for which priority dates are current now. The current wait times for F2B are about 6.5 years for people born in most countries, 21 years for people born in Mexico, and 10.5 years for people born in the Philippines. You need to wait that long for a visa number to become available before they can go to the next step; the petition being approved is not enough.

As they are not in the Immediate Relative category (spouse, parent, or under-21 child of US citizen), they need to be in status to be eligible for Adjustment of Status. (There is an exception if someone once filed a petition for you or them before 2001, in which case they may adjust under 245(i).) Since they won't be in status, they cannot do AOS.

That leaves Consular Processing abroad, which requires leaving the US. However, leaving the US may trigger the 9B unlawful presence ban. If they accrued 180 days of "unlawful presence" and then leave the US, they have a 3-year ban. If they accrued 1 year of "unlawful presence" and then leave the US, they have a 10-year ban. "Unlawful presence" is somewhat complicated. It usually starts when one stays past the date on their I-94 (but if they were admitted for "D/S", e.g. people who entered on F or J status, then there is no date on their I-94 so they do not start accruing "unlawful presence" by staying past any date). But they do not accrue "unlawful presence" while under 18, or while under DACA. So it is important to determine how much "unlawful presence", if any, they have accrued. That depends on a lot of information that you haven't provided, like how and at what age they entered, at what age they got DACA, etc. If they don't have 180 days of "unlawful presence" yet (e.g. if they got DACA before 18.5), then they might consider leaving the US before their DACA is revoked or let expire by Trump, to avoid getting to 180 days.

If they will trigger a ban upon leaving the US, then they will have to consider a waiver. For that, they will have to demonstrate "extreme hardship" to their LPR or USC spouse or parent (e.g. you, their USC parent) if they cannot be in the US. Currently, it is possible to apply for a "provisional waiver" before leaving the US, to apply without the risk of being stuck abroad, but this is just an executive rule and it is unclear whether it will still be available under Trump (though he might not be president by the time a visa number becomes available anyway).