K1 aging out

[david_dawei]

As Carl pointed out in a separate thread and as is shown in the referenced post, the K2 is treated differently than K4, and is able to come to the US up till the age of 21... and then apparently file for adjustment after the marriage (even though they might be 18 or older).

 

K-1; K-2 her son turns 18!, NVC hell pushes son into adulthood

http://candleforlove.com/forums/index.php?showtopic=13150

 

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It begs the question: Why do K2s appear to skirt the definition of 'stepchild' (must be established by age 18) for the purposes of filing AOS?

 

It seems that two processes are playing out:

1) Entry to US; the K2 comes as defined for child, up to the age of 21 they can be admitted. This seems clear enough.

2) Adjust for status; What's going on here?

 

I wonder if the K2 is allowed to file till they are 21 is because the derivative status is still in effect at filing (although they don't meet the 'stepchild' definition, they are derivative of a K1 and not filing as a child of alien who is married, meaning not a K4); although their status expires as defined on the I-94 we know they don't accrue unlawful presence.

 

And then I wonder if those processing the adjustment simply are following the rationale that the child was issued a visa (for a reason) and permitted entry (for a reason) and the marriage happened and filing occurred (all for the same specific reason)... So, applying some spirit of the law and not the letter of it; That issuing a visa for the purpose of coming to the US as a K2 is expecting the K1 to marry and adjust...

 

[tonado]

http://faq.visapro.com/K2-Visa-FAQ.asp

 

http://faq.visapro.com/K4-Visa-FAQ.asp

 

Both K2 and K4 age limit is 21.

[tywy_99]

It's all just a matter of navigating through the provisions set by law.

 

The NIV K3/4 was modeled after the NIV K1/2 and was created to alleviate the arduous task and long wait of petitioning for an (IV) immigrant visa.

 

The age-out is the same on both the K2 and K4, being 21 years of age. Only the validity of the two visas are different.

 

The age of 18 was the age set in defining "child" because that age has always been accepted as the age of emancipation and thereby written into the law.

 

Now, the INA states that any alien legally present in the United States may file the I-485 AOS. This is where some of the "navigating" comes in. Once an alien, regardless of what visa status used to legally enter the US is here, can take advantage of that provision.

 

In Rupert's case, if I remember correctly, his wife's daughter wanted to finish school in China before leaving and she is near aging-out.

This apparently has caused some difficulties and concerns for him because there are several factors needing immediate attention and consideration along with decisions needing to be made and to be made rather quickly, I presume. I apologize if I had strayed.

All the same, it comes down in choosing the lesser of two evils and choosing the path of least resistance and to best optimize the actions taken.

 

I didn't read the details in the USCIS link but the benefits of the "follow-to-join" section sounds promising. I'd be interested in reading it.

 

And to close; weigh out your options and make a firm decision on what would benefit you and your family best. This applies to all of us and there is no "black and white" to it.

 

I hope this helps.

 

 

-good luck to all and a Happy New Year!

[frank1538]

Perhaps the biggest difference between K-2 and K-4 lies in the basis for the principal visa (K-1 and K-3). The K-2 and K-4 are both derivative visas, but the K-3, unlike the K-1, is designed to allow and IV petitioner to come to the US while the I-130 is pending. No such requirement exists for for the K-1. Consequently, a condition precedent to issuing the K-3 is that the I-130 be filed.

 

For whatever reason, there doesn't seem to be a requirement that an IV petition also be filed for the K-4 as a prerequisite to issuing the visa, and it is here that things turn very complicated. Many USCs who are able do go ahead and file the I-130 for the child at the same time they file the I-130 for the spouse, but some do it after the child arrives in the US. Again, there is no requirement that an I-130 be filed for a K-1 fiance(e) or a K-2 child.

 

The complications arise when the USC cannot file the I-130 for the child because the child is over age 18 at the time of the marriage. In such instances, two questions arise. The first is whether the consulate will issue the K-4 in the first place. USCONGUZ didn't really answer this question. Personally, I think the K-4 should be issued if the child is unmarried and under age 21 irrespective of whether the USC can file the I-130. The second question is whether the K-4 can adjust status once in the US if the USC cannot file the I-130. Conventional wisdom suggests that the alien spouse can file the I-130 once LPR status is achieved, and the child can file AOS, assuming the child is still under age 21 and unmarried. Unfortunately, this is not entirely free from doubt.

[david_dawei]

Tony's comment drives home the point that to qualify for a VISA, the 'child' must be under 21.. I was using the "entry to US" as a point, but this is permitted with the visa issuance. Seems that based on this, a visa should be issued right up to the age of 21...

 

Ty reminds me of the LIFE ACT, and the reason was the delay processing of the I-130... so K3/K4 was created to alleviate the burden of waiting apart... thus, the alien spouse could wait out the remaining immigrant processing in the US... So, the I-130 for the alien spouse could be still processing, but the K3 allows one to come to the US before it has been completed. The K4 can come over as well, although they never had a I-130 submitted.

 

Thus, Frank's comment of "while the I-130 is pending", if I understand this correctly. Thus, an alien spouse and child can submit a I-129F , while the I-130 is pending... and get a K3/K4 issued to them for coming to the US...

 

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As for K1: Seems they fille for AOS after the marriage of the mother to USC.. even though they might be over 18 at time of marriage...

 

Why can the child can gain entry to the US when over 18 ? There is no 'stepchild' relationship (ie: no marriage has occurred yet); they are issued the visa based on a derivative status...

 

Maybe this is equally applied to the filing of AOS... particularly since there is no need to file a I-130 (for either adult or child) as Frank points out... so no spousal issues come into play in regards to defining 'stepchild" (?)

 

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Here are some comments that I am trying to understand:

 

Federal Register:

http://www.nallaseth.com/documents/NewK1Rules.htm

 

State Department Cable (on Federal Register)

http://www.immigrationlinks.com/news/news1125.htm

 

INS Memo on unlawful presence

http://www.americanlaw.com/unlawfulmemo1.html

 

 

 

 

 

1. "...since the parent would no longer be in K-3 status but would be an LPR, the child would no longer be in lawful K-4 status, since it is merely a derivative classification."

 

2. The new section 214(p)(3) of the Act provides that the new nonimmigrant K status will terminate 30 days following the denial of the relative visa petition or application for immigrant status based on such a petition. Therefore, if the Form I-130, Petition for Alien Relative, the immigrant visa application, or the adjustment of status application of an alien admitted under section 101(a)(15)(K)(ii) of the Act, or the child of such an alien who accompanied or followed to join such an alien, is subsequently denied, the spouse and child's K nonimmigrant status will terminate automatically 30 days later and the alien(s) must leave the United States. For purposes of termination of the new K statuses, these petitions or applications are denied when the applicable administrative appeal has been exhausted, or the period to appeal has expired.

 

3. Read literally, the language in (K)(ii) could mean that those aliens with approved Form I-130 petitions on their behalf would not be eligible for K-3/K-4 status. This is because those aliens would not need to await the approval of the petition and because no visa number is needed by an immediate relative of a U.S. citizen. A visa is available as soon as the Form I-130 is approved. However, since the new section 214(p)(3) of the Act provides that the (K)(ii) or (K)(iii) nonimmigrant status shall terminate 30 days after the denial of the Form I-130, the application for an immigrant visa, or the adjustment of status application, the term ``availability of an immigrant visa,'' appears to have a different meaning than the same term in sections 202, 203, and 245 of the Act. The Service believes that Congress did not intend to create a nonimmigrant classification for spouses and children of U.S. citizens that is based on the filing of a Form I-130 petition, only to see that classification cut off to them part of the way through the immigration process. However, the Service also believes that Congress did not intend for this K-3/K-4 status to be of indefinite duration and that status holders must be taking steps to ultimately immigrate.

 

4.

According to the INS rule, the alien spouse of a U.S. citizen and a child of that spouse who are already in the United States may have the U.S. citizen file an I-130 petition on their behalf with INS; the alien spouse and his/her child may then file with INS for an adjustment of status to LPR. While either of these are pending, the alien spouse and his/her child may remain in the United States without accruing unlawful presence, and they may also obtain work authorization and permission to travel outside the U.S., and they may continue to do so without K3/K4 status or visa.

 

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The first comment suggest the losing of the K4 derivative status once the K3 is LPR... but the second comment suggests it expires 30 days later...

 

Thus, could the K3-turned-LPR file the I-130 for child in those first thirty days (while the K4 is possibly not accruing unlawful presence), thereby putting the K4 into a 'I-130 pending status'...

Edited January 1, 2006 by DavidZixuan (see edit history)

[Guest pushbrk]

Tony's comment drives home the point that to qualify for a VISA, the 'child' must be under 21.. I was using the "entry to US" as a point, but this is permitted with the visa issuance.   Seems that based on this, a visa should be issued right up to the age of 21...

 

Ty reminds me of the LIFE ACT, and the reason was the delay processing of the I-130... so K3/K4 was created to alleviate the burden of waiting apart... thus, the alien spouse could wait out the remaining immigrant processing in the US...   So, the I-130 for the alien spouse could be still processing, but the K3 allows one to come to the US before it has been completed.  The K4 can come over as well, although they never had a I-130 submitted.

 

Thus, Frank's comment of "while the I-130 is pending", if I understand this correctly.   Thus, an alien spouse and child can submit a I-129F , while the I-130 is pending... and get a K3/K4 issued to them for coming to the US...

 

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As for K1:  Seems they fille for AOS after the marriage of the mother to USC.. even though they might be over 18 at time of marriage...  

 

Why can the child can gain entry to the US when over 18 ?   There is no 'stepchild' relationship (ie: no marriage has occurred yet); they are issued the visa based on a derivative status...

 

Maybe this is equally applied to the filing of AOS... particularly since there is no need to file a I-130 (for either adult or child) as Frank points out... so no spousal issues come into play in regards to defining 'stepchild" (?)

 

---

 

Here are some comments that I am trying to understand:

 

Federal Register:

http://www.nallaseth.com/documents/NewK1Rules.htm

 

State Department Cable (on Federal Register)

http://www.immigrationlinks.com/news/news1125.htm

 

INS Memo on unlawful presence

http://www.americanlaw.com/unlawfulmemo1.html

 

 

 

 

 

1. "...since the parent would no longer be in K-3 status but would be an LPR, the child would no longer be in lawful K-4 status, since it is merely a derivative classification."

 

2. The new section 214(p)(3) of the Act provides that the new nonimmigrant K status will terminate 30 days following the denial of the relative visa petition or application for immigrant status based on such a petition. Therefore, if the Form I-130, Petition for Alien Relative, the immigrant visa application, or the adjustment of status application of an alien admitted under section 101(a)(15)(K)(ii) of the Act, or the child of such an alien who accompanied or followed to join such an alien, is subsequently denied, the spouse and child's K nonimmigrant status will terminate automatically 30 days later and the alien(s) must leave the United States. For purposes of termination of the new K statuses, these petitions or applications are denied when the applicable administrative appeal has been exhausted, or the period to appeal has expired.

 

3. Read literally, the language in (K)(ii) could mean that those aliens with approved Form I-130 petitions on their behalf would not be eligible for K-3/K-4 status. This is because those aliens would not need to await the approval of the petition and because no visa number is needed by an immediate relative of a U.S. citizen. A visa is available as soon as the Form I-130 is approved. However, since the new section 214(p)(3) of the Act provides that the (K)(ii) or (K)(iii) nonimmigrant status shall terminate 30 days after the denial of the Form I-130, the application for an immigrant visa, or the adjustment of status application, the term ``availability of an immigrant visa,'' appears to have a different meaning than the same term in sections 202, 203, and 245 of the Act. The Service believes that Congress did not intend to create a nonimmigrant classification for spouses and children of U.S. citizens that is based on the filing of a Form I-130 petition, only to see that classification cut off to them part of the way through the immigration process. However, the Service also believes that Congress did not intend for this K-3/K-4 status to be of indefinite duration and that status holders must be taking steps to ultimately immigrate.

 

4.

According to the INS rule, the alien spouse of a U.S. citizen and a child of that spouse who are already in the United States may have the U.S. citizen file an I-130 petition on their behalf with INS; the alien spouse and his/her child may then file with INS for an adjustment of status to LPR. While either of these are pending, the alien spouse and his/her child may remain in the United States without accruing unlawful presence, and they may also obtain work authorization and permission to travel outside the U.S., and they may continue to do so without K3/K4 status or visa.

 

---

 

The first comment suggest the losing of the K4 derivative status once the K3 is LPR...  but the second comment suggests it expires 30 days later...

 

Thus, could the K3-turned-LPR file the I-130 for child in those first thirty days (while the K4 is possibly not accruing unlawful presence), thereby putting the K4 into a 'I-130 pending status'...

179457[/snapback]

David,

 

A couple things get my attention.

 

2. The new section 214(p)(3) of the Act provides that the new nonimmigrant K status will terminate 30 days following the denial of the relative visa petition or application for immigrant status based on such a petition. ...

 

I intepret the second half of the sentence as having the operative verb "DENIAL". So, I find it difficult to apply any of the paragraph to the status of the child of the alien spouse, if the immigrant status is GRANTED. I interpret "such a petition" to refer to a DENIED petition.

 

 

Second:

 

4.

According to the INS rule, the alien spouse of a U.S. citizen and a child of that spouse who are already in the United States may have the U.S. citizen file an I-130 petition on their behalf with INS; ...

 

Appears to say that the USC can file an I-130 if the spouse is already in the US. It makes me wonder if the USC's ability to file changes based on the K4 child's arrival in the US. It doesn't really make sense but that's what it appears to me to say.

 

The caveat is that none of the paragraphs you quoted directly addresses the age at time of marriage issue. To further complicate matters there's a CFL member that filed an I-130 CR2 for a 20 year old daughter of his alien spouse and it was approved. I've sent a PM to him to find out where things stand. They were awaiting interview in June 05.

Edited January 1, 2006 by pushbrk (see edit history)

[Guest ShaQuaNew]

Very good information guys. I find that I spend most of my time researching the hurdles that are immediately in front of me. This one is hopefully coming very soon. It's my hope to bring my SO and her daughter who will be 15 tomorrow to the US. Because we are K1, I believe that means she will be K2. After almost seven months since filing, I've rather back-burnered a lot of the investigation. I hope we can pin or save this as it contains stuff that I will need to refer to later.

 

Happy New Year Everyone...

[david_dawei]

I think your first point is right.. I was reading the "or" incorrectly...

 

Probably need to read your second point in context of the seconds above or below.. I was just pulling out a section about not accruing unlawful presence.

 

I agree that none of the quotes directly address the age issue... but they assume one applies the definitions correctly. There are sections which make the reminder of the age...

 

Although I recall a CFL member getting CR2 approval when the daughter was over 18 at the marriage... hopefully you'll get an answer that sheds some light on this...

[david_dawei]

Very good information guys. I find that I spend most of my time researching the hurdles that are immediately in front of me. This one is hopefully coming very soon. It's my hope to bring my SO and her daughter who will be 15 tomorrow to the US. Because we are K1, I believe that means she will be K2. After almost seven months since filing, I've rather back-burnered a lot of the investigation. I hope we can pin or save this as it contains stuff that I will need to refer to later.

 

Happy New Year Everyone...

179463[/snapback]

As K2, as long as she can get the visa before turns 21, she'll be able to enter the US... I hope the security check won't continue that long