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

I submitted the I-526 as a main applicant, along with my daughter as a dependent child. I''m currently waiting for a consular processing interview in my home country. My daughter has been in the United States since 2009, but she fell out of status three years ago. I do understand that she is not eligible to adjust status in the United States. My question is, will her being out of status disqualify her from passing the consular processing as a dependent child? If she leaves the United States, will she be able to reenter as my dependent?

Answers

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    Charles Foster

    Immigration Attorney
    Answered on

    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.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    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.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    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.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    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.

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    Christian Schmidt

    Immigration Attorney
    Answered on

    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.

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