My spouse is on the H-1B visa whereas I am a DACA (Deferred Action for Childhood Arrivals) recipient. We are thinking about applying for a green card through the EB-5 route with my spouse (H-1B holder) as the principal applicant. If we do so, and if our I-526 petition is approved, can I also be part of the adjustment of status application as a dependent spouse without having to leave the U.S.? I came to the U.S. on a tourist visa at the age of 13 and got DACA at the age of 25.
It appears you will not be eligible to adjust under section 245(k) since you have been out of status for more than 180 days. Your spouse may want to proceed since having a lawful resident spouse may open options for a waiver of unlawful presence. May also want to explore advance parole options but need to make sure you are admissible before leaving.
You have accrued unlawful presence from the age of 18 and ½ to the date of DACA approval so would likely need to consular process your case and get a waiver unless you are eligible for some relief otherwise.
You will not qualify for adjustment of status. You will need consular processing due to unlawful presence after age 18.
