frank1538

It seems like you've got a couple of choices. I gather that you wife is an LPR, so she might file an I-130 for her daughter. I believe unmarried children of LPRs get put in the second preference category which, for China, means a looooooooong wait of many years. The better option seems to be for you, as the USC, to file the I-130 for her daughter, now your step daughter, since the marriage creating the step child relationship occurred before the daughter turned 18. I don't know for certain, but it would seem that the I-130 processing, which would result in either a CR-1 or IR-2 visa, would take about as long as other I-130s, say upwards of a year. Given the length of time to process, you might consider starting now. The legal custody of the child might have to be established with the mother and the ex's permission might be needed.

Yeah, the banks can be pretty particular when it comes to dollars - no marks, no tears, no fading. But remember it cuts both ways http://candleforlove.com/forums/index.php?...ost&p=41069 :

You and me both.

Actually, I was thinking of Harriott, et al v. Ashcroft, et al. 277 F. Supp. 2d 538 (2003). While the case was decided post CSPA, the sequence of events leading to the litigation occurred pre CSPA. I agree will just about all that you posted. I do want to make one comment though. I'll take you at your word that a K-2er gets a 90 duration of stay even if it extends past the "child's" 21st birthday. I agree with most of this, but I'm curious why one's status after lawful/inspected admission should make any difference at all. As I read the statute/regulations, lawful admission is all that's required. We have seen a number of instances where AOS is filed after the authorized period of stay has passed for both the K-1 and the K-2. It often happens in instances where the marriage takes place close to the end of the 90 day period and the marriage certificate, etc. is not available until sometime later. Other than accruing possible unlawful presence after the 90 days, there doesn't seem to be much downside. I do agree that once admitted, the K-2er should be able to file for AOS even if after reaching age 21. The problem with this is that I'm not sure USCIS would agree, and I would still recommend that the I-485 be filed before age 21 if at all possible. If that's not possible, I'd love to follow the litigation that might once and for all lay to rest the age out issue.

First, I want to apologize to Randy who shot me a PM on this thread. I've been away from CFL for a while. 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. 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. 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 seems to agree with this. 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. 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. 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. 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. Now, for my own situation. Yes, KK was adjusted after she turned 21. Her application was filed 9 months prior to her 21st birthday and the application and transmittal letters were marked as a potential age out situation and requested expedited processing. Maybe the USCIS center processing her case didn't believe that age out was an issue, or maybe they just made a mistake, or maybe the application was adjudicated before her 21st birthday and the paperwork and green card just took a while to catch up, or maybe they didn't want to take that chance that I'd go running to court to get their hands slapped, but the issue never came up, thank God. 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.

The denial reason is somewhat obvious.. how can you go to china 7 times and yet need a co-sponsor... they wanted proof of how you got to china and how paid for it... You must submit taxes for co-sponsors.. so second denial reason obvious again. you don't need government intervention... Just give them what they want... I agree with the others. While there may be good and valid reasons relating to how you were able to visit China so often and yet need a co-sponsor, on paper it could easily raise the issue. Assuming the explanations are appropriate, providing the additional information related to the co-sponsor's income taxes appear to be simply part of the documentation process. Good luck

The domicile issue can be a tough one. A couple of things to keep in mind: Technically, domicile and residence are not the same. Residence generally refers to where you live. You are residing in China, but China may not be your domicile. Domicile, on the other hand, stays fixed until you do something to change it. Temporary residence, say in China, does not necessarily equate to your domicile changing to China. Domicile is usually permanent in the sense that it refers to the place you intend to return to after temporary absences. This is part of the equation. So, in addition to demonstrating where you will live in the US (mom's house, if only for a while), you should also gather information that will help to demonstrate that your time in China is temporary. What type of visa do you have? Is it time-bound, say for 1, 2, or 3 years? Is it purpose specific, say for school only, or something like that? Is your current job governed by a time-bound contract ("I agree to work for three years", etc.)? Is where you live in China governed by an expiring lease? Do you have any correspondence that documents that you did not intend to stay permanently in China? Have you notified the folks in China (employer, landlord, etc.) that your temporary stay in China is coming to an end? Did you maintain your driver's license in the US? Are you still registered to vote in a particular state? Do you own a car still registered in your name? Any other US touch points that you maintained while you were in China? Hopefully, you've got the picture. Where you physically live in the US is important, as Lee points out, but it is not necessary that where you physically live in the US be permanent for your domicile to be in the US. Rather, the more important consideration is demonstrating that your legal domicile was in the US before you went to China, that your time in China was temporary, and that you intended to return to the US after this temporary absence.

Now that's what I call a happy ending... or maybe a happy beginning. Congratulations.

I'm certainly not one to want to correct frank... but if one looks at the pinned thread on GCs w/o an interview, almost half of them had an RFE. SO an RFE'ed petition seems to carry no bearing on the chance for GC w/o interview. Someone tell me I'm overlooking something... I agree with you David. My statement may have been a little too broad. I was thinking of the situation where it is acceptable not to submit the supplement with the I-485. In such instances, it seems likely that the applicant will have to go to the interview in order to supply it. I guess it's possible for an IO who wants to approve without an interview but can't because the supplement is missing to send out an RFE for it, but I wouldn't want to take that chance.

Here's my thinking on this whole thing. Carl alluded to it on the I-134 piece. Being asked to bring something to the interview and being asked to produce it at the interview are two different things. Hell, Jingwen brought a ton of stuff to the interview to prove the bona fides of the relationship, but she wasn't asked to produce it. She brought the financial stuff but wasn't asked to produce it either. Does that mean that we didn't need to bring it to the interview? The ex's wherabouts issue seems to be gaining GUZ's attention of late. I would rather have what I could gather and not have to produce it than not bring it and receive a blue slip.

I would recommend creating separate packages for each application, which is what I did. I mailed all three packages together, but each package had a separate cover letter, and separate checks (a separate application fee check and a separate biometrics check). For the C/O line, I showed my name. The addresses were all the same. I probably could have left the C/O line blank, but completing it didn't seem to have any impact on the process.

Don't know whether it's acceptable in your neck of the woods. But, I'll say this. Even if it's acceptable, you'd just about eliminate any chance of getting adjusted without an interview if you don't submit it with the application.

Sorry to break the news to you, Jesse, but a separate I-485 is required for the K-2 child. That means a separate I-485, separate G-325A, separate fees, separate biometrics, and separate documentation. For Jingwen's kids, we submitted: 1. Two FC-029s (one for the applicant and one for me), stating that all copies were exact photocopies. This form is not required, but we used it anyway. 2. The I-485, along with the required photos (2 at the time). 3. The G-325A, in quadruplicate. 4. A copy of the I-797, NOA, that approved the original I-129F for Jingwen. 5. A copy of the passport main pages, a copy of the K-2 visa, and a copy of the front and back of the I-94. 6. Notarial birth certificate with English translation. 7. A copy of Jingwen's and my marriage certificate. 8. I-864 affidavit of support. 9. Employment verification for me. 10. Copies of earnings for the previous three months for me. 11. Copies of the federal income tax returns for the prior three years. 12. Separate I-485 application fee and separate biometrics fee. I suspect that some of this stuff was not officially required, and I know that the I-864 requirements have changed.

Just to clarify the previous post, the Letter to K1/K2 Applicants sent with the P4 contains the following: "Submit these items during your interview: ... If you [applicant] were married previously, please bring in documents containing the following information for your interview: your ex spouse's name Date of Birth social security number (if applicable) last known address and phone number..."

The same thing happened to KK, my step daughter. Her name was misspelled. We made an appointment with the local office, brought a completed I-90 with us, along with documentation that the error was USCUS's. The IO waived the I-90 fee and stamped her passport with the I-551 stamp. The corrected green card arrived some time later.