How can my out of status EB-5 dependent consular process?

Detailed legal analysis is necessary to review your daughter's situation. Please consult an experienced immigration attorney. If your daughter was in F-1 status and was admitted to the United in D/S (duration of status) she may not have accrued unlawful presence (even though she is out of status and ineligible to adjust in the United States) until USCIS or an immigration judge makes such determination when your daughter applies for an immigration benefit. If she is under age 18, she will not start accruing unlawful presence until after the day she reaches age 18. Unlawful presence is an issue for the application of a 3- or a 10-year bar upon departure from the United States to consular process. If she was admitted until date certain on her I-94 and she is over 18, she may be barred for three years to enter the United States if she has been unlawfully present in the United States for more than 180 days since her last status expired, or for 10 years if she has been unlawfully present in the United States for one year or longer since her last status expired. A waiver of unlawful presence at the time of consular processing of an immigrant visa abroad requires meeting very strict standards and she may not be qualified. Before she departs the United States, talk to an experienced immigration attorney to review all possible immigration options.

I believe you will have to file an application for a waiver for your daughter to reenter the United States. Please see the instructions for Form I-212.

If your daughter is over 18 years old and if she has accrued more than 180 days of unlawful presence, she will become subject to a three year bar to reentry upon leaving the United States. More than one year of unlawful presence will subject her to a 10 year reentry bar should she leave the United States. If she was in F-1 or F-2 D/S status and then stopped going to school, it is possible that she might not have begun to accrue any unlawful presence, although she may be out of status and therefore, ineligible for adjustment of status. You should consult with an experienced immigration attorney to determine her options. She should NOT leave the United States without talking to an immigration attorney first.

Since your daughter is out of status, she will not be able to adjust status in the United States and will have to return home, presumably with you and your other family members for her immigrant visa interview at the appropriate American consulate. However, if she has been out of status for more than six months, she is subject to a three year bar or prohibition from returning to the United States until she spends three years in her home country and even worse, if she has been out of status for more than one year, she is subject to a 10-year bar or prohibition from reentering the United States until she has spent a full 10 years in her home country. She may not be subject to these bars if she is still under the age of 18. This is a critical question and you should immediately consult with experienced legal counsel as to how this matter should be handled as it may require your daughter to make a quick immediate departure in order to avoid the bar, depending upon her age.

If she was in F-1 status she will not accrue unlawful presence, but if she had a date certain I-94 entry, and has more than 180 days of unlawful presence since age 18, she will be barred from reentry. You need to have an experienced lawyer review the options.

Whether or not she will be able to consular process in would depend on whether she has accrued any "unlawful presence" that would bar her from returning back to the United States. This is slightly different than being "out of status," which you say she has been for three years. If a person has accrued more than one year of unlawful presence, she is barred from returning for 10 years. Because this requires detailed legal analysis, please consult with an experienced immigration lawyer.

Generally, the longer one is out of status, the longer the bar to re-entry, but because there is a family matter in play here, there may be options. We would need to learn much more about your process, immigration history, and more.

Your daughter will only be able to obtain the visa if she will not have been out of status for more than 180 days after turning 18 when she leaves the United States.