burnedatbothends

Found this again in looking for posts on a related topic - to say, David, that K-2's must not be 21 at the time of adjudication is the same as saying that K-1's must not be married at the time of adjudication - that is, the immigration officer may adjust the status of the person who was admitted as (and is no longer) a K-1 fiance. Why would he not also adjust status for the person who was lawfully admitted as the child of the K-1 fiance? Randy it's Curt been trying to email you. Hope everything is ok. Drop me an email when you get the chance. Good luck Thursday

Hi Frank There is a case where the K-1¡¯s marriage took place after the 90 day period (by 2 days) but I do not believe there were any K-2¡¯s involved, see (just food for thought): Juanita de los Santos MOSS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 79-3738 UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT. UNIT A 07/29/1981: In part: The testimony at the hearing is not clear as to the reason why the marriage ceremony was not conducted within ninety days of Mrs. Moss' arrival. However, the testimony and record on appeal indicate that illness or other factors beyond Mrs. Moss' control may have caused the wedding to be delayed past the ninety-day time period. On appeal Mrs. Moss contends that ¡ì 214(d) does not set forth a hard and fast rule requiring a marriage ceremony within ninety days, but instead allows the ninety-day period to be tolled to compensate for delays beyond the alien's control. She argues that she substantially complied with ¡ì 214(d) and requests that her case be remanded in order that she may show that the delay in her marriage was due to no fault of her own. We believe Mrs. Moss' argument has merit. In 1970 Congress added the "K visa" provision to ¡ì 101(a)(15) in order to allow an alien fiancee or fiance to enter the United States to marry a United States citizen. "The purpose behind ¡ì 214(d) is to facilitate formation of marital relationships. ... The relevant inquiry, enunciated in the statute, is whether the parties have a bona fide intent to marry after the alien enters." Menezes v. I.N.S., 601 F.2d 1028 (9th Cir. 1979) (emphasis added). As a prerequisite to approval and issuance of the "K visa", the Attorney General must be satisfied that the petitioner-citizen and alien have a bona fide intention to marry soon after the alien's arrival. Although the fourth sentence of ¡ì 214(d) provides for deportation in the event the marriage is not completed within ninety days, it seems the purpose of the time limit is to qualify the intention of the alien to soon marry upon entrance into the United States rather than to place an absolute and mandatory period of time within which the marriage ceremony must occur. "Marriage within the time limit essentially confirms the intent to marry after entry was bona fide." Menezes v. I.N.S., supra. In this case it is beyond dispute that the parties intended to be married within ninety days of Mrs. Moss' arrival and were, in fact, married. It would be incongruous indeed to hold that the very same statute which facilitates entry into the United States for purposes of marriage would require deportation because the ceremony occurs two days late due to circumstances beyond the control of the nonimmigrant alien. As stated in Board Member Appleman's dissenting opinion, Congress did not intend the ninety-day limit to be so rigidly applied that it could not be tolled when, due to circumstances beyond the aliens' control, it becomes impossible to formalize the marriage within ninety days. We hold that Mrs. Moss should have been allowed to show why she could not formalize her marriage within the ninety-day time period and, if she can demonstrate the two-day delay was due to factors beyond her control, the ninety-day time period must be tolled accordingly. For these reasons the decision of the Board of Immigration Appeals is reversed and the case remanded to the Immigration Judge for a determination of cause for the delay of the marriage. Currently there is a pending (summary judgment date is Dec 11 2006) case in the US District Court in the Eastern District of California where the K-1 and K-2 entered the day before the K-2¡¯s 21st birthday (the K-2¡¯s visa was granted 3 days prior to her 21st birthday and was only good up to her birthday), and both where admitted for a period of 90 days. The marriage took place 42 days after entry, and the AOS was filed 85 days after entry. The K-1 parent was adjusted some 7 months after entry and the K-2 was denied. I do not know what the actual denial was based on but what is in dispute according to the filing are section 214(d), 216(a)(1) and 216(g). Fingers crossed lets hope the decision is favorable to the alien. On another case (still pending, and I do not have all the details), the alien K-2 was denied based on his eligibility to adjust under section 245(d). The denial stated that what 245(d) means (to the service at least) is that at the time of adjudication the aliens described under 101(a)(15)(k) must meet those definitions. So what does section 245(d) mean? What was Congress¡¯ intent when they penned (I only cut the relevant part): (d) The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) 2aa/ except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) . Some in the service contend this is where the age out occurs, others say the term ¡°minor child¡± just refers back to the nonimmigrant, still others will contend that the aliens under 101(a)(15)(k) must meet those definitions, and still others say the conditions/eligibility would be under 216, but I think anyway you look at it, it isn¡¯t ¡°clear¡± it may even be ¡°ambiguous¡±. If and when this particular case goes to court I would imagine that Chevron may come in to it <shrug> I just hope the December 11th case goes in favor of the K-2, and that the service will use this decision as it did in the V-2 Akhtar case. Burned

Will do (darn i see I had a few typo's, I thought computers were like smart)

"The issued raised over at VJ is a really troublesome issue. There are so many variables here that it's hard to articulate the ins and outs of adjusting a K-2 who is approaching age 21, but I'll make a few observations. First, prior to enactment of the CSPA, it was USCIS's position that K-2ers had to have their AOS applications adjudicated before the "child" turned 21. However, when one checks the law and regulations on adjusting from K-2 to LPR, all the regulation requires is that the K-2er be a "minor child" at the time the AOS application was filed." There are several district office that don't seem to have an issue adjusting these cases, even prior to the enactment of the CSPA, it seems there is a wide difference of opinion within the service on how to adjust K-2's. Some office seems to feel that the once the K-1 is granted benefit (green card) K-2 alien should also be eligible to adjust, regardless of age. Some go the more restrictive route as you mention. The case on VJ the K-2 alien was under 21 at every milestone in the process, apart from the actual adjudication, and the K-1 mother adjusted to LPR soon after the K-2 son's arrival in the US, the K-2 used his "follow to join" rights. Even under the USCIS's own regs CFR 8 245.1©(6) The only requirement is to "apply". Then in their regs they adjust as a son or a daughter as a conditional resident under CFR 8 245.1(h) "USCIS's apparent position was that the K-2 is a derivative visa (true), so the adjustment to LPR must also be derivative also (questionable). The thinking was that the K-2 was like other derivative visas and since the law required children with other derivative visas to still be children when the AOS application was adjudicated, the same rule applied to K-2ers. While the I-485 seems to differentiate between K-2ers and other derivative visas (check out the categories for AOS on the form and you'll see that K-2ers are not lumped in with other derivative visa categories), the USCIS still treated them the same for "aging out" purposes. So, "aging out" was an issue prior to the CSPA." The main issue with Immigrant Immediate Relative or Derivative petitions and age-out is section 205, no such restriction is placed on an applicant under 214. Under 205 the terms are set forth when the age out occurs for petitions under 203 or 204 (drawing from memory here). With other non-immigrant classes (K-4, V-2, V-3) the period of admissibility is contained within the statue itself and sets the "age-out". Although it may not have been Congress' intent to place these restrictions, the code(s)/statutes were written is such a way. "Enter the CSPA. Most would agree that obtaining the actual K-2 is not covered by the CSPA since the K-2 is not an immigrant visa, but the wording of the act is so convoluted, there is still some uncertainty whether it covers the adjustment of status phase. In most instances, the CSPA requires that an immigrant visa petition (i-130) be filed for the Act to apply, and we know the I-130 isn't required for a K-2 AOS. Because of this, USCIS takes the position that the CSPA does not cover a K-2er who is adjusting status. Most experts seem to agree with this." Yes Non-Immigrant petitions under section 214 are not covered in the CSPA. Only sections 201, 203, 204, 207, and 208 are covered. "So, the CSPA probably doesn't help a K-2er who is approaching age 21. Is the USCIS's position right? Does a K-2er still run the risk of aging out? Only a court can answer this, but there have been a few cases dealing with the age out issue. One dealt with a V-2 visa (the LPR equivalent to the K-4). In that case, the court essentially said that there was nothing in the law that said the V-2 AOS application had to be adjudicated prior to the child's turning 21, despite the regulations that said otherwise. There was a lot of discussion of legislative intent, etc., but the bottom line was that USCIS's position was wrong." The case you mention above: In the AKHTAR v. BURZYNSKI No. 02-57037 in the 9th Circuit, what the court found in regard to the V visa age-out was this: In short, the age-out provisions of 8 C.F.R. ¡ì 214.15(g), as interpreted by the INS, are contrary to congressional intent and frustrate congressional policy. Thus, the INS¡¯s construction is not owed the deference normally granted under Chevron. See id. We therefore invalidate the age-out provisions of 8 C.F.R. ¡ì 214.15(g), and reverse and remand for further consideration consistent with this opinion. "There was also a K-2 age out issue that went to court prior to enactment of the CSPA. In that case, the AOS processing for the mom dragged on for about three years during which time the child turned 21. Eventually, the mom's AOS was approved, but USCIS refused to adjust the kid since he had turned 21 and ordered deportation. While the court seemed to acknowledge the derivative nature of the K-2 AOS, it said there were enough screw-ups by USCIS during the mom's AOS processing so that USCIS might be estopped from deporting the kid. The court kicked the case to a lower court for further proceedings on whether USCIS should be prevented for deporting the child. There doesn't seem to be any report on what the lower court did with the case." The case you mention above: ANTHONY APASEN MAUTING; REMIGIO APASEN MAUTING, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 99-70088 08/15/01 From the case: However, the IJ held that the Mautings did not qualify as derivative beneficiaries to their mother's adjusted status because each was over the age of 21 at the time of the decision and was not a "child" as defined in 8 U.S.C. ¡ì 1101((1). Relying on 8 U.S.C. ¡ì¡ì 1153(d) and 1158©, the IJ noted that the determination of the Mautings' eligibility for derivative status at the time of adjudication accorded with the "usual practice of the [iNA] regarding derivative beneficiaries of immigrant visas or application for adjustment of status." The IJ declined to entertain the Mautings' claim that the INS should be estopped from deporting them because of the INS's affirmative misconduct, holding that he was without power to apply equitable estoppel against the INS. What was not clear from the case was that the K-2's were over 21 at the time of the MOTHER's adjudication, would they have been granted benefit (derivative or otherwise) if their mother's adjudication too place prior to their 21st birthday, BUT their adjudication took place after their 21st birthday? I have looked up the case Via PACER and there are no documents available but as I recall the case was dismissed, but it does not say why, the USCIS may have adjusted them based on the estoopel claim or the Judge may have based the dismissal on grounds he found favorable to the defendants case. I did try to contact their counsel but he never returned my emails or calls. "There was another age out case dealing with derivative citizenship, where a "child" can become a citizen when the parent becomes a citizen. In that case, USCIS again dragged its feet, and the kid turned 21 before the petition was approved. The court said that USCIS could be prevented from deporting the child." The case you mention above: JOSE A. CALIX-CHAVARRIA, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES 3rd Circuit No 05-3447 05/12/06 This case was remanded back to the BIA on the Basis that the CSPA has broad protections for age-out. In this case the age-out was on a derivate Citizenship case. The plaintiff age was over 18 at the time the mother's naturalization took place although the petition had been with the USCIS for quite some time. Interesting that the court felt that a petition not covered by the CSPA should be afforded protection. Then again there was a case where the court stated that they petitioner was not protected by the CSPA and the case was dismissed: JUAN ISMAEL COREA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 03/16/06 CSPA not applicable to Nicaraguan Adjustment act (sect 202) "All of these cases seem to indicate that aging out might still a problem, but if the age out comes about as a result of USCIS doing something stupid (rather than just being slow), the courts might entertain an estoppel or mandamus action." Based on all of this, I can only say that if a K-2er is approaching age 21 and there is a risk that the child may age out, assuming this is USCIS's current position, it would be prudent to mark the AOS application as a potential age out situation and request expedited processing. Under normal rules, this is supposed to put USCIS on notice and is supposed to move the AOS application to the front of the line for processing within a certain period of time. If the child then actually ages out before the application is approved, there may be the possibility that a court wouldn't look too kindly on USCIS if it was on notice about the potential age out but still did nothing to expedite the case." The problem I have with this is a K-2 either accompanying or follow to join the K-1 are allowed a visa (if they qualify) UP TO their 21st birthday for entry into the US. If a K-2 applicant is 20 years and 364 days old they are entitled and will be granted a visa to enter the US that is good for one day. After they arrive the time they are allowed to stay on the visa is 90 days. So clearly there period of admission grants them legal status past the age of 21, and the 90 day term is to facilitate the marriage of the parent to the USC petitioner, whose petition accorded them K status to begin with, then they file for adjustment of status. In this particular case, his age was pointed out to the supervisor in charge of the desk at the District Office. She assured the applicant that he was "well within the age for eligibility" and that he "would be okay because there was a new law in place" (presumably referring to the CSPA) and he "had nothing to worry about". The applicant's mother also attempted to file an I-130 on the same day, but was told by the same supervisor "You don't need one of those" and it was not accepted. Technically, she was right, but it would have afforded the "child" protection under the CSPA because he was still only 20 years old at that time. The K visa came into being in April 7th of 1970 with the enactment of PL 91-225. The 1970 Act, for the first time, created a non-immigrant classification which directed to an ultimate grant of lawful permanent residence. At that time (and I believe still) the only conditions as far as a K-2's age is concerned in on the Non-Immigrant portion of visa, the issuance, and entry in to the US (lookup pre 1986 BIA cases Dixion and Dawson). Further the process of adjustment at that time was the LPR status was recorded as of the date of PAYMENT or filing of the petition, after the marriage took place! Congress examined the "K-1/K-2" fianc¨¦ provisions in 1986 with the enactment of the Immigration Marriage Fraud Amendments [PL 99-639, November 10, 1986]. It is important to note that in the 36 years since 1970, Congress has made no change whatsoever in the eligibility of sons and daughters of K-1 non-immigrants to obtain lawful permanent residence. "Personally, I think the age out problem sucks big time, and I wish a court somewhere would invalidate all USCIS postions on aging out that are not clearly supported by an actual statute." Me too! You have to look at the way things were then and the way things are now. The INA was written back in 1952 with amendments (band aids) affixed ever since. Most of the conditions as far as age-out and eligibility where constructed at a time when there were NO backlogs, so it was not really a consideration. Fast forward to today, it's only getting worse, what they should be doing is freezing the date of the immigrant's age at the date of entry or at the very least the AOS application filing date. But I think you're right, it will have to go before a court, or receive a change in the law from Congress, before the USCIS will actually adjust these cases uniformly and fairly and stop aging out K-2's.