Stay and wait?

[TooLegit]

Hello Everyone,

Have a question:

My relative has a pending F1 visa with a priority date in about 1.5 years. He doesn't want to wait anymore inside the country. He wants to leave go back home in order to wait the 1.5 years there, then file I-601 waiver and come back.

What are the chances of that passing? He's over 21 years old, and my citizen dad filed the I-130 for him.

Or:

Is it absolutely necessary to stay in USA to wait for priority date in order to file I-601a from within?


He had aged out on DACA by a few months. He may qualify under some Dream Act, but who knows if those will become law.

Any help is appreciated.

Thanks

[inadmissible]

Since he has not maintained continuous lawful status, he is not eligible for adjustment of status on the basis of a first-preference immigrant relative petition. He will have to leave anyway, and he will have to apply to waive the grounds of inadmissibility due to his excess accrued unlawful presence

If he had entered with inspection, and he might marry a US citizen, it will be easier for him to stay and adjust his status once he is married - which does not require him to have maintained continuous lawful presence. Easier in the sense that he wouldn't have to overcome the incredible hurdle of winning a waiver

[TooLegit]

Since he has not maintained continuous lawful status, he is not eligible for adjustment of status on the basis of a first-preference immigrant relative petition. He will have to leave anyway, and he will have to apply to waive the grounds of inadmissibility due to his excess accrued unlawful presence

If he had entered with inspection, and he might marry a US citizen, it will be easier for him to stay and adjust his status once he is married - which does not require him to have maintained continuous lawful presence. Easier in the sense that he wouldn't have to overcome the incredible hurdle of winning a waiver

So you are saying if he leaves then he cant continue his F1 visa application? Does it change to another preference? He entered the country when he was 8 years old without inspection and been here for almost 3 decades.

To make sure I understand correctly. If he leaves or stays, since he entered without inspection he needs to travel to the embassy in the home country anyways. But if he leaves without the 601a waiver first, he might get denied the 601 from the home country. If that happens does he get the 10 year bar? or does that get reduced since he left voluntary?

He just wants to make sure that if he leaves right now, he can just go back to the home country and wait for the priority date there, instead of waiting here and risk deportation. Then file the 601 from there to see if they will waive the inadmissibility. For the 601 waiver, does it help if his whole immediately family is US citizens, dad, mom, brother and sister? and that he spent 30 years with no criminal history at all? Could that help him get the 601 waiver? Or is your recommendation to stay in usa and wait the remaining 1.5 years for his priority date and then file 601a?

[inadmissible]

So you are saying if he leaves then he cant continue his F1 visa application? Does it change to another preference?

No, that is not what I was saying. I was saying that he can't adjust his status (on the basis of a first preference family petition) within the country because he has not maintained continual lawful presence since his last admission. There is an exception for people who were beneficiaries of immigrant petitions (whether employment or family based) filed before April 30th 2001 (245i)

He entered the country when he was 8 years old without inspection and been here for almost 3 decades.

He is a childhood arrival. If he is eligible for the DACA program, he could travel abroad then return on DACA Advance Parole. On AP, he would not trigger the grounds of inadmissibility relating to his excess accrued unlawful presence upon departing the United States. On AP, he would be likely granted parole back to the United States - which would then make him eligible for adjustment of status. However DACA is not "lawful status", it is just deferred action, so he would only be able to adjust status on the basis of being an immediate relative of a US citizen - that is if he is petitioned by a US citizen spouse or child. That is because "immediate relatives" are not subject to the requirement that they maintain continuous lawful residence in order to adjust status (although still subject to the requirement that they have entered lawfully, other than 245i beneficiaries). That will not help him adjust his status on the basis of his father's first preference family petition.

If he leaves or stays, since he entered without inspection he needs to travel to the embassy in the home country anyways.

In order for him to obtain an immigrant visa based on a first preference family petition, he will need to travel to a consulate abroad (wherever he may legally reside - not necessarily his home country) to apply for the visa. This is not per se because he entered without inspection, it is specifically because he has not maintained continuous lawful status since his last admission. Re-entry on an H or L work visa after obtaining DACA AP is his only viable pathway towards adjustment of status on the basis of an immigrant petition other than as immediate relative. There is no other way for him to meet the "in continuous lawful status since last admission" requirement

But if he leaves without the 601a waiver first, he might get denied the 601 from the home country. If that happens does he get the 10 year bar? or does that get reduced since he left voluntary?

If he leaves without an approved I-601A (or DACA AP) he will trigger the 10 year bar. If that happens, he will have no choice but to file a I-601 while abroad and wait for it to be approved (14 months or more). No, there is no benefit of reduced penalty for leaving voluntarily. In fact, he would be only slightly worse off if he was deported instead. The statutes stack the incentives towards staying as long as possible

He just wants to make sure that if he leaves right now, he can just go back to the home country and wait for the priority date there, instead of waiting here and risk deportation.

This is rare. Rarely do aliens have any interest in abandoning their decades long home to spend a year and a half or more abroad in a country that has become foreign to them, living far apart from their family and the job opportunities that afford them a better quality of life, with the added stress of living in an environment that is less safe & secure than they are accustomed to. Even more so for a child who grew up here in the United States, and is American as apple pie except for that niggling detail about lawful presence. Talk to him some more about this, because I call bullshit on him wanting to live back home for that long rather than just face the risk of deportation (in which case the worst thing that happens is he has to go home anyway)

For the 601 waiver, does it help if his whole immediately family is US citizens, dad, mom, brother and sister? and that he spent 30 years with no criminal history at all? Could that help him get the 601 waiver?

For the I-601 & I-601A the only thing that matters is the extreme and unusual hardship faced by his US citizen+resident spouse+parent as a result of his absence from the United States, or them having to live abroad with him. Not the hardship he will face, regardless of the level of hardship. Not the hardship his spouse+parents will face that does not meet the threshold of extreme and unusual hardship (ie not hardship expected and typical in situations where families are separated or live abroad). In fact, the fact that he has other siblings here in the United States to care for his parents might make his narrative weaker

Or is your recommendation to stay in usa and wait the remaining 1.5 years for his priority date and then file 601a?

I recommend that he apply for DACA right now, and begin preparing to file his waiver. He should make a careful decision to leave the country only when he has exhausted his opportunities for obtaining DACA AP. If he obtains DACA AP, he should leave only when his priority date is current and he has a consular appointment. If he fails to obtain DACA AP, he should be prepared to apply for the I-601A waiver when his immigrant petition is approved (which should be sooner than when his priority date would be current). He can use the same narrative to apply for the I-601+I-212 if he is removed instead. I also recommend that he should come up with a plan for a 10 year absence abroad (which may involve applying for residency or work visas in countries other than his homeland) in case he never wins a waiver, and he should make plans to marry his US citizen partner (especially if he obtains DACA AP) in case something happens to his dad