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Of the 21 yr. old K-2's who have been denied - one was appealed to the USCIS's AAO (Administrative Appeals Office) by the USCIS itself (and the ruling affirmed), another has gone to court and lost, but is appealing to the 9th Circuit Court in California (I'm not sure if this is a Federal or State court). Another was able to get an expedited interview before the K-2 turned 21, and was approved.
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If you want to know why I am so optimistic about Jiang's appeal I will share with you my (non-legal) impression of the lower court's rationale. Folinsky argues that section 245 is not the proper authority for adjustment of K2s and he's propably techinally correct. But it seems that congress back in 1986 removed a sentence from Section 214 which discusses K visas. That sentence gave authority to adjust, almost automatically. The section was removed because congress wanted the adjustment to be conditional until the parties were married two years in order to deter potential marriage fraud. In fact the 1986 act was entitled "International Marriage Fraud Act". Obviously, the act did not intent to deter fraud by creating an age-out potential where none previously existed.
Nevertheless, the removal of the sentence opened the door for the USCIS to write up a regulation (8 CFR 214.2(k)(6)(ii) which reads in pertinent part.. "Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa.....the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act.
Folinsky argues that the regulation is not law and was unnecessary since the adjustment process was not effectively changed by the deletion of the aforementioned sentence from INA 214. I would hope that upon appeal, Folinsky will argue in the alternative, that even if the government and lower court are correct that adjustment process authority now lies in INA 245, the wording bolded above has been demonstrably misinterpreted.
I say "demonstrably" because the same sentence that supposedly requires the K-2 to remain a "minor child" ("minor child" is not defined in the INA, but was recently interpreted as being the same as "child" per INA definitions) at the time of application for adjustment also would require the parent to be a "K-1 beneficary" at the time of adjustment. By definition, a "K-1 beneficiary" must be an unmarried alien. However, the alien parent must be marreid to the petitioner before he/she can apply for adjustment. The only consistent interpretation, therefore, is that the terms, "K-1 Beneficiary" and "minor child" are merely appellations or labels and not definitive of status at the time of adjustment. The USCIS's illogical interpretation was followed by the District Court judge and I think that once the inconsistency is pointed out on appeal, Jiang will get a favorable ruling and I believe that the USCIS will then decide to follow this decision in all K-2 adjustment issues.
Nevertheless, the removal of the sentence opened the door for the USCIS to write up a regulation (8 CFR 214.2(k)(6)(ii) which reads in pertinent part.. "Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa.....the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act.
Folinsky argues that the regulation is not law and was unnecessary since the adjustment process was not effectively changed by the deletion of the aforementioned sentence from INA 214. I would hope that upon appeal, Folinsky will argue in the alternative, that even if the government and lower court are correct that adjustment process authority now lies in INA 245, the wording bolded above has been demonstrably misinterpreted.
I say "demonstrably" because the same sentence that supposedly requires the K-2 to remain a "minor child" ("minor child" is not defined in the INA, but was recently interpreted as being the same as "child" per INA definitions) at the time of application for adjustment also would require the parent to be a "K-1 beneficary" at the time of adjustment. By definition, a "K-1 beneficiary" must be an unmarried alien. However, the alien parent must be marreid to the petitioner before he/she can apply for adjustment. The only consistent interpretation, therefore, is that the terms, "K-1 Beneficiary" and "minor child" are merely appellations or labels and not definitive of status at the time of adjustment. The USCIS's illogical interpretation was followed by the District Court judge and I think that once the inconsistency is pointed out on appeal, Jiang will get a favorable ruling and I believe that the USCIS will then decide to follow this decision in all K-2 adjustment issues.
Posted 05 May 2007 - 11:54 PM
