[lostinblue]

http://www.visajourn...showtopic=39290

[tywy_99]

You scared me there for a minute!
When I first read the title of your post I read it as "Four" children following to join, not "For."
All kinds of thoughts raced thru my head, like, "you poor soul! what have you gotten yourself into!?"... :cheering: :cheering:

Can you imagine???...."Four?" :cheering:

[Randy W]

Two questions for anyone who can make an educated guess.

For someone who comes over at or near age 21 -

• How long can they expect to stay in the country?
  
• Would EAD be denied as well?

[david_dawei]

This topic has caused more stress and misunderstanding than maybe any other...

The VJ thread appears to simply follow the rules as they are stated.. one must not be 21 by the time of adjudication...

The feeling expressed in the past was to file the AOS by the time of turning 21 continues the derivative status [until adjudication].. although I don't really see this anywhere in documentation.

Although Frank can testify that his wife's daughter was over 21 by the time of her adjudication.. so not sure if different offices are following different ideas.

The CPSA only really helps CR2.. so it cannot really be applied to derivative status as a help.

----

How long can they expect to stay in the country?

The I-94 defines their authorized length of stay... Assuming the marriage occurs in 90 days and filing for AOS in reasonable time then permits the child stay in the US till adjudication.

My guess is that only the AOS adjudicator would do anything to change their authorized stay...

technically, GUZ can issue a visa until they turn 21, the POE can allow them to enter prior to turning 21... but no assurances of adjusting status.


Would EAD be denied as well?

good question...

The EAD is either filed upon first 90 days (non-renewal) or or based upon having filed adjustment petition...

My guess is that age doesn't matter to them.. the I-94 status or pending AOS is what matters to them.

I will say that the issuance of EADs is fraught with problems that the Ombudsman has made numerous recommendations.. hoards of people get EADs who are not even authorized to be in the country... HOW? Since the pending AOS application is supposed to decide that but the EAD is issued prior to finding out their true status.

[Randy W]

But this (on VJ through the link above) is a new development:

Quote

The USCIS took ten months to adjudicate our son's case, by which time he turned 21. In some District Offices this takes even longer. The USCIS sent our case to the Administrative Appeals Office for a "certified" decision. This is a decision that will be applied to ALL K-2's that find themselves in our situation, across the entire USA.

Their decision agreed with the District Office and they too feel that my son was not eligible for AOS because he was over the age of 21 when they got round to adjudicating his case. Bearing in mind the time it takes for background checks to be completed, if anyone has a K-2 son or daughter applying for AOS when they are anywhere near to 21 years old, they will now be denied

and suggests that Frank's daughter would now be denied her AOS because she was over 21 at the time of adjucation.

Our plan presently is to bring Jiaying's son over and apply for AOS and EAD before his 21st birthday (Dec. 17). He already has the visa in his passport.

Will this fail because of the above "certified" decision?

This post has been edited by Randy W: 28 October 2006 - 01:10 PM

[C4Racer]

DavidZixuan, on Oct 28 2006, 10:56 AM, said:

This topic has caused more stress and misunderstanding than maybe any other...

The VJ thread appears to simply follow the rules as they are stated.. one must not be 21 by the time of adjudication...

The feeling expressed in the past was to file the AOS by the time of turning 21 continues the derivative status [until adjudication].. although I don't really see this anywhere in documentation.

Seems like a big issue for quite a few people. One thing I would like to add, even though I am no where close to being in the situation.
This decision was made by USCIS Administrative Appeals Office. It is still part of USCIS. They might be more apt interpret the law the same way as the district office, especially if they read district office input. If it were me, I would immediately file an appeal with the Board of Immigration Appeals (BIA). They are the highest authority. USCIS must adhere to their decision. The big key is they are seperate from USCIS and DHS being part of the Dept. of Justice. I have read several K-type visa cases where the BIA has overturned the decision USCIS has made, stating they completely mis-interpreted the law.

Information on the BIA:
The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. It is composed of 11 Board Members, including the Chairman and Vice Chairman who share responsibility for Board management. The Board is located at EOIR headquarters in Falls Church, Virginia. Generally, the Board does not conduct courtroom proceedings - it decides appeals by conducting a "paper review" of cases. On rare occasions, however, the Board does hear oral arguments of appealed cases, predominately at headquarters.

The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by District Directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen, or a business firm. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts, and the Board.

Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. All Board decisions are subject to judicial review in the Federal courts. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

http://www.uscis.gov...regs/biadec.htm

http://www.usdoj.gov/eoir/orginfo.htm

Lostinblue if you are a member at visa nourney could you share this information? It seems like it would be worth a try.

[Randy W]

C4Racer, on Oct 28 2006, 01:20 PM, said:

Lostinblue if you are a member at visa nourney could you share this information? It seems like it would be worth a try.

just posted - His other thread got more response

Quote

This visa has actually been around since the 1970's. It is only recently that issues like ours have become a problem. There have been many K-2's that adjusted status just fine, even after reaching 21, but now the AAO's Decision is going to put a stop to that.

The time difference means that our attorney has not heard the news yet. I feel he put together a great argument but the AAO are not in agreement with him.

Our only recourse now is probably to take this to Court. The problem being that this is going to totally bankrupt us and if they too agree with the AAO's decision, we will be returning to the UK with absolutely nothing but the clothes we stand in!

With all the talk of family reunification, it seems totally crazy to me that after my son has lived here three and a half years, done nothing wrong, paid all the fees (in fact, he is in Pittsburgh now, as I type, having is biometrics done for his 4th EAD and hasn't heard the news!!!) broken no laws, he is being told he has to return to his country of origin, simply because he turned 21 during the AOS adjudication process.

What about all the other K-2's about to enter the US, nearing 21? They are now going to be told that they cannot adjust status if their AOS application isn't adjudicated before they turn 21. There are going to be many that simply can't get through the background checks in time.

This post has been edited by Randy W: 28 October 2006 - 01:34 PM

[david_dawei]

Randy W, on Oct 28 2006, 02:08 PM, said:

But this (on VJ through the link above) is a new development:

Quote

The USCIS took ten months to adjudicate our son's case, by which time he turned 21. In some District Offices this takes even longer. The USCIS sent our case to the Administrative Appeals Office for a "certified" decision. This is a decision that will be applied to ALL K-2's that find themselves in our situation, across the entire USA.

Their decision agreed with the District Office and they too feel that my son was not eligible for AOS because he was over the age of 21 when they got round to adjudicating his case. Bearing in mind the time it takes for background checks to be completed, if anyone has a K-2 son or daughter applying for AOS when they are anywhere near to 21 years old, they will now be denied

and suggests that Frank's daughter would now be denied her AOS because she was over 21 at the time of adjucation.

Our plan presently is to bring Jiaying's son over and apply for AOS and EAD before his 21st birthday (Dec. 17). He already has the visa in his passport.

Will this fail because of the above "certified" decision?

Look at any of the website definitions and criteria.. they have always said one must be 21 at adjudication... but Frank was a case in point; and this one is a case in point. it's hard to know if EVERY district office is going to now forward a decision to AAO or just approve it.

One needs data and time to know what's going on..

The issue is: What is the child's age at the time of adjudication? For some areas like Buffalo or Boston it is 4-6 months after filing; for Orlando, it's 2 years...

[Randy W]

DavidZixuan, on Oct 28 2006, 01:55 PM, said:

Look at any of the website definitions and criteria.. they have always said one must be 21 at adjudication... but Frank was a case in point; and this one is a case in point. it's hard to know if EVERY district office is going to now forward a decision to AAO or just approve it.

One needs data and time to know what's going on..

The issue is: What is the child's age at the time of adjudication? For some areas like Buffalo or Boston it is 4-6 months after filing; for Orlando, it's 2 years...

What I see is:

Quote

If you were admitted as the K-2 child of such a fiancé(e), you may apply to adjust status based on your parent's adjustmentapplication.

No mention of age.

I also see:

Quote

An immediate relative of a United States citizen(parent, spouse, widow, widower or unmarried child under 21 years old)

So is this person applying as the son of an American citizen? Apparently not.

Quote

. . ., you are quite right when you state that the AAO is still part of the USCIS - that's the first thing our attorney said when we called him today to tell him we'd received their Decision.

We are now likely to go to the BIA, after we receive the actual Denial Notice from the USCIS District Office, where all the paperwork has now been sent in order for them to do that.

We recently contacted the Justice Department's, Office of Legal Counsel, to discuss this matter with them - incorrect interpretation of the law - we are waiting to hear back. The Justice Dept. also has an "Immigration Law Research Center" and we contacted them also.

I will certainly make a point of letting everyone know the progress of this, because it will affect so many K-2's applying for AOS.

Quote

Personally, I am holding out that my attorney is correct and the only requirement is that the K-1 marries the original petitioner within the specified 90 days. It is even questionable whether or not the K-2's application for AOS has to be made prior to them reaching 21.

I hope for our sake this is resolved before December.

[david_dawei]

How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?
http://uscis.gov/gra...oi/agingout.htm


What is an "Aging Out" case?
An "Aging Out" case is a situation referring to a person's petition to become a permanent legal resident as a "child" (for definition please see child as defined in the Immigration and Nationality Act), and in the time that passes during the processing of the application, the "child" turns 21, and "Ages Out."

Prior to the passage of The Child Status Protection Act (CSPA) on August 6, 2002, if the child turned 21 years of age before his or her adjustment of status was completed, the child "aged out" and could not become a permanent resident.

----

In that second comment.. since the CSPA does not help a K status.. it's the same before and after CSPA for them... per the bold... and made clearer with subsequent memos on CSPA...


DOS Cable on CSPA:
http://www.shusterma...spa-dos103.html

"K-4 applicants (like V applicants) cannot benefit from the CSPA."



CSPA Memo #2
http://www.uscis.gov/graphics/lawsregs/han...k/CSPA2_pub.pdf
The CSPA does not apply to an alien obtaining K2 or K4 visas or extensions. While nothing would necessarily prohibit an alien who once was a K4 from seeking to utilize the CSPA upon seeking adjustment, an alien who is a K2 cannot utilize the CSPA when seeking to adjust.

[Randy W]

The CSPA applies to an American citizeen petitioning on behalf of his/her children, or a legal permanent resident petitioning on behalf of his/her children.

K2's as a derivative of K1 are not subject to it. He would not be applying for AOS as an Immediate Relative. The Application Type is:

Quote

I entered as a K-1 fiancé(e) of a United States citizen whom I married within 90 days of entry,or I am the K-2 child of such a fiancé(e). (Attach a copy of the fiancé(e) petition approval notice and the marriage certificate

As the original VJ post states,

Quote

The USCIS took ten months to adjudicate our son's case, by which time he turned 21. In some District Offices this takes even longer. The USCIS sent our case to the Administrative Appeals Office for a "certified" decision. This is a decision that will be applied to ALL K-2's that find themselves in our situation, across the entire USA.

Their decision agreed with the District Office and they too feel that my son was not eligible for AOS because he was over the age of 21 when they got round to adjudicating his case. Bearing in mind the time it takes for background checks to be completed, if anyone has a K-2 son or daughter applying for AOS when they are anywhere near to 21 years old, they will now be denied.

He is saying, again, that this ONE decision

Quote

will be applied to ALL K-2's that find themselves in our situation, across the entire USA

because of the fact that

Quote

The USCIS sent our case to the Administrative Appeals Office for a "certified" decision.

If this is the case, Jiaying's son will come here and have to go back after his AOS application is turned town according to what is apparently the current USCIS interpretation of immigrant law, even though the application states that he is eligible to apply.

Where is there an age limit on K2 AOS's? The visa must be used/awarded (unclear which) by age 21, but we are talking about AOS here.

Like I'm saying, hopefully, this will be resolved before he gets here because his application will need to go in by Dec 17 (his 21st birthday).

[Randy W]

Some more details from their case. The son had been in the US for 3 1/2 years on a K-2 derivative.

Quote

Friday 3rd February 06 - Phyllis Howard, District Director in Washington DC office, along with Debbie Posey, Adjudications Supervisor met with us in the Fairfax USCIS building. They put their case for denial to us and we tried to explain that they are applying laws relating to immigrant petitions to my son's petition, which is a non-immigrant petition. They could not show us where in the INA it states K-2's have to be under 21 at the time of adjustment, only where it applies to I-130 applicants. They said it was "implied"!! My son entered as the derivative beneficiary of a K-1 and did not need to file an I-130, it isn't necessary. Denied under totally the wrong section (203 (d)) which does not apply to K-2's. If it did apply to my son's application he would be protected by the CSPA! They agreed that there was need for clarification and agreed to send the file to the Administrative Appeals Office for a certified decision. Our attorney has to file an MTR and send his argument to DC for them to base their argument! Sorry, nice people, no idea! The sad thing was that Phyllis Howard thought it was funny to offer my husband a job at the USCIS, since he is extremely knowledgeable about the INA and CFR's that apply! I wasn't laughing!

3rd February 06
Asked attorney in California - extremely reputable, been in immigration law for over 30 years - to provide an Argument as to why my son should not be considered an "age-out". Attorney is adamant that K-2's do not "age-out" that there is nothing in statute that requires them to be under 21 at the time of adjudication, only at application. We explain to him that the Argument is to go to Phyllis Howard, direct, as she has placed the file back in "pending". She will look at the attorney's argument and then send it, along with their argument, to the Administrative Appeals Office.

A complicating factor was that the K-1 mother became a citizen on June 5, 2006, to put her son in line for a visa #. It's not clear to me if that would terminate the "follow to join" status.

[david_dawei]

yes.. CSPA applies as you say (and as I have quoted... showing that K visa holders get no relief from this Act).

The age of 21 is for all visa holders for all events (Visa issuance, Entry at POE, adjustment adjudication)... it's just that it applies a little differently to K2 and K4.

For a K4 'step-child' to immigrate as a 'child', they must create the 'step-child' relationship prior to 18 y.o. (ie: at the time of marriage) and then has until 21 for all the events.

K2s don't become 'step-children' for immigration purposes.. they are a 'child'; so the 18 y.o. limit doesn't apply; thus the derivative status is maintained to the child even if the alien parent marries and even gets their green card (9FAM). In principle, they simply get till 21 y.o. to do all the events.

WHY 21 ?? That's the definition of 'child'... in order to immigrate, a 'child' must be under 21, etc..


How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?
http://uscis.gov/gra...oi/agingout.htm

Under immigration law, a person wishing to become a permanent resident based upon his or her status as a "child" must meet the definition of child as found in the Immigration and Nationality Act. In general, this person must be unmarried and under the age of 21.


It will be interesting to see how this falls out... the application vs adjudication gap is the problem.. and that it various by district office is going to get them backed into a corner when they look at this.

[Randy W]

So where do you see this stated?

Quote

The VJ thread appears to simply follow the rules as they are stated.. one must not be 21 by the time of adjudication..

In fact, the I-485 says only that

Quote

If you were admitted as the K-2 child of such a fiancé(e), you may apply to adjust status based on your parent's adjustment application.

you must have been admitted as a child.

The American citizen is NOT applying for one of his children.

The LPR is NOT applying for one of her children.

Why would CSPA apply?

This post has been edited by Randy W: 28 October 2006 - 10:19 PM

[david_dawei]

I"ve never said CSPA applies.. I've said it doesn't apply to K# visa holders... (but the CSPA admits the K problem.. so it's worth looking those sections).

Aging out means ones age disqualifies them for the definition of 'child'.. that one is 21 or older.

Here is the quote I made earlier:

DavidZixuan, on Oct 28 2006, 05:14 PM, said:

How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?

What is an "Aging Out" case?
An "Aging Out" case is a situation referring to a person's petition to become a permanent legal resident as a "child" (for definition please see child as defined in the Immigration and Nationality Act), and in the time that passes during the processing of the application, the "child" turns 21, and "Ages Out."

Prior to the passage of The Child Status Protection Act (CSPA) on August 6, 2002, if the child turned 21 years of age before his or her adjustment of status was completed, the child "aged out" and could not become a permanent resident.

The first paragraph defines the aging out problem: Aging out DURING the process of adjustment... (turning 21 prior to adjudication).

The second paragraph states the problem again... a child turned 21 y.o BEFORE adjustment was complete.

What CSPA did was to cover a few visa categories so those children would get relief from aging out... It stand to logical reason that all those who are not covered by CSPA are still in the same exact problem as defined above... BEFOFE AND AFTER CSPA: aging out prior to adjudication.

This is from USCIS web's site about aging out.. it is not a link to CSPA..

Look at some lawyer websites and they seem to suggest the same to me...

The kink in all this is cases like Frank. which makes one wonder if the district offices are doing different adjudications or there's some change now... I tend to think the former... I don't see or hear that anything is changing.

If they are cracking down on wrong adjudications then it means the BEFORE and AFTER was supposed to be the same but some did not adjudicate that way.

If there's truly some new policy.. hopefully we'll see it...

Another thought.. based on the 9FAM comments on K2... I've not seen this argued but I could see where people would take the comments (K2 perserves their status even if the alien beneficiary marries and gets her GC) and say this should continue this 'grandfathering' effect through to their GC adjudication... I would tend to agree with this idea from a rational perspective.. but that means squat... since I know nothing about immigration law... seems we need to get the legal interpretations consistently enforced by USCIS in the end...

This post has been edited by DavidZixuan: 28 October 2006 - 10:25 PM