For Children following to join

[Randy W]

Sorry, this affects whether we should even bring her son here in the first place, and how we fill out his I-485 if we do.

 

What you're seeing that I am not is this - why would he have to remain a child for the AOS? It seems to specifically require only that he was admitted as a child.

 

I can find plenty of attorneys who see it the same way I do, but precisely what law should we be looking at?

[david_dawei]

In fact, the I-485 says only that

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

you must have been admitted as a child.

this has to do with your eligibility to file a petition... your parent's status and yours... it is not trying to be a commentary on potential aging out issues... IMO...

 

It's apparent that one can age out inbetween more than one stage:

- you could get issued a visa the day before turning 21.. yet POE won't let you in...

- you could get through POE the day before turning 21.. yet cannot file adjustment...

- you can file for adjustment the day before turning 21.. according to USCIS website, you can age out prior to adjudication... (I know this doesn't sit well with any of us.. but it is consistent with the other stages)... hopefully I'm wrong...

[warpedbored]

I am very interested in seeing Frank's perspective on this. I also wonder what the possibilities are for filing a lawsuit. This is an issue that needs to be publicized. Senators and congressional reps need to be written to. Newspapers and TV should pick this story up. While most Americans are somewhat anti immigration not many would support splitting up family once they are here legally. This being an election year could help. I am writing my legislators today. This kind of abuse by an inept bureaucracy can't be tolerated.

[jim_julian]

David ... it probably doesn't influence anything in the process but why do you say that a K2 doesn't become a step child? Lao Po and I were married before Er Mei turned 18. Er Mei will be coming to the US on a K2 in May at the age of 18 years and 8 months. We intend to file for AOS as soon as she is here and therefore she will probably not have a problem as she'll have about 2 years and 3 months processing before 21, but I certainly think she is a step-child.

[david_dawei]

David ... it probably doesn't influence anything in the process but why do you say that a K2 doesn't become a step child? Lao Po and I were married before Er Mei turned 18. Er Mei will be coming to the US on a K2 in May at the age of 18 years and 8 months. We intend to file for AOS as soon as she is here and therefore she will probably not have a problem as she'll have about 2 years and 3 months processing before 21, but I certainly think she is a step-child.

 

I'm using the term in a strictly immigration manner.. her adjustment of status is not based on a relationship to you (ie: step-child/step-parent).. but to her mother (derivative status).

 

The question might logically arise, what about K4? They were married (step relationship exists) yet they are derivative... That's why K4s differ from K2s.. The K4 has a foot in both waters (IV and NIV).. and must file the I-130 for the child to adjust anyway... filing that I-130 requires the step-child/step-parent relationship.

 

For K2, no I-130.. ergo no step-relationship is required for immigration purposes.

[david_dawei]

What you're seeing that I am not is this - why would he have to remain a child for the AOS?

I think what's being missed here is that the CSPA came into existence for a specific reason: Children were aging out prior to adjudication. BOTTOM LINE... The CSPA now protects certain classes from this (and not others). This was created by the USCIS adjudication backlog.

 

The more I read online, the more consistent message I see that it's about adjudication more than anything... Here are two very telling comments.. if adjudication was not the issue, then these comments would appear unnecessary... yet it seems USCIS has/had a procedure specifically to avoid the age-out by adjudication:

 

1) I-485's and aging out. It is our understanding that an I-485 will be expedited

if a dependent child will turn 21 within 6 months of filing. We are ready to

file an I-485 for an employee with a child who will turn 21 eight months from

the date of filing. Should we wait for two months to file the I-485? If not,

how can we flag the application to alert the Service Center that the

application includes a child who will age out before the normal processing

time is complete? If we have a case currently pending with such a situation,

should we fax Division I? How far in advance should we fax?

Answer:

I-485 are flagged when they come in the door if the dependent will age-out

within one year of the receipt date. The case is reviewed by a CAO in the

mailroom. If the age-out falls within 6 months, the application is fee¡¯d in

immediately hand carried to the supervisor¡¯s workstation in Division 1. If the

age-out is beyond 6 months but under 1 year, the application continues

through the process and is placed on the age-out shelf in the file room in (birth

date) order. At the point that it reaches the 6th month mark, the file is pulled

and sent out to the Age-Out Supervisor in Div. 1

Please place a sheet of paper with large print, indicating that it is an age-out on

the face of the application.

 

 

2) Under paragraph 9 of the court order (regarding age-outs), adjudication of both I-140's and I-485's will be expedited by the Service upon advance written notice to the INS for a class member with a child who would become 21 years old. Such notice must be provided at least 120 days in advance of the child's 21st birthday.

[C4Racer]

In fact, the I-485 says only that

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

you must have been admitted as a child.

this has to do with your eligibility to file a petition... your parent's status and yours... it is not trying to be a commentary on potential aging out issues... IMO...

 

It's apparent that one can age out inbetween more than one stage:

- you could get issued a visa the day before turning 21.. yet POE won't let you in...

- you could get through POE the day before turning 21.. yet cannot file adjustment...

- you can file for adjustment the day before turning 21.. according to USCIS website, you can age out prior to adjudication... (I know this doesn't sit well with any of us.. but it is consistent with the other stages)... hopefully I'm wrong...

 

I don't see where you are wrong on these points, but it seems to me USCIS is saying that the child loses thier benefits if they turn 21 during processing of AOS. This means all they have to do to keep someone from getting LPR status is simply drag the case out at which they are very good. Take their time and this is one less interview. This doesn't seem like a very good interpretation of the law. On top of that the child in this case has lived in America 3 1/2 years already. Something is just downright rotten here. This case as well as their decision that will affect other cases, needs to be at least reviewed by the BIA. The only way that will happen is by filing a law suit.

[warpedbored]

CFL has never flexed their collective muscle as a political action group before but we have proved with the Jany case and the Jimei case that if we pull together we can get things done. What if CFL were to unite with visa journey and collect a fund to defend this case? The victims have already said the defense would likely bankrupt them. Between our two groups and perhaps other groups like british ex pats we could put together a large enough legal war chest to set a legal precedent that could serve all of our groups well.

[Patrick & Li]

I am not quoting anybody nor am I agreeing or disagreeing with anything said. BUT,..... In my own experience with dealing with all of this mess. Nobody in Immigration is so organized that what one says all others will follow.

 

Pat

[C4Racer]

I am not quoting anybody nor am I agreeing or disagreeing with anything said. BUT,..... In my own experience with dealing with all of this mess. Nobody in Immigration is so organized that what one says all others will follow.

 

Pat

 

Pat ,

I must say that I do agree with you. Also, I am the one who indicated one persons decision might sway another person in this matter. Let me tell you what I meant.

We normally deal with lower level personnel who very seldom understand the rules, how things work or even do the same process the same. This is true accross the board for all government offices with whom we deal. So we get the impression that no one in the office knows or understands. One person can make a decision only to be overturned by the next person to whom you talk.

My experience tells me, that when something goes wrong, you ask for a supervisor. Generally, the lower level supervisors are the same, you get different answers from different supervisors. Higher level supervisors tend to give you the same answers. Their answers generally follow the rules and guidelines laid out for their department. This tells me the more seasoned people who get promoted go through some type of training to attain their position(may also be wishful thinking.) Yes, I also know you can find exceptions to all rules.

This decision was reached by the higher level personnel and passed onto even a higher authority to have the decision reviewed. My thought is they are more apt to reach a common decision. Right or wrong, they are more apt to stick to the rules as they are written. Immigration rules do not always follow the laws.

So, this case should be appealed. My understanding of the process is that it first must be appealed to the office that made the decision, the AAO. They must decide to overturn or uphold based on any new evidence you submit. Once they make another decision, then you can file to appeal it through BIA, Federal Courts and higher authorities respectively. Problem is it takes time and some money. Time is no problem, but sounds like money is the issue here.

[Randy W]

 

This decision was reached by the higher level personnel and passed onto even a higher authority to have the decision reviewed. My thought is they are more apt to reach a common decision. Right or wrong, they are more apt to stick to the rules as they are written. Immigration rules do not always follow the laws.

So, this case should be appealed. My understanding of the process is that it first must be appealed to the office that made the decision, the AAO. They must decide to overturn or uphold based on any new evidence you submit. Once they make another decision, then you can file to appeal it through BIA, Federal Courts and higher authorities respectively. Problem is it takes time and some money. Time is no problem, but sounds like money is the issue here.

 

The original poster, Girona40 on VJ, is making the assertion that since the decision was "certified" by the Administrative Appeals Office, it will be passed along to ALL k-2's from now on. If this is true, then our attempts to bring Jiaying's son over will simply result in his being sent back, most likely within 90 days to a year.

 

But I get the feeling from reading their story, that there are some unique circumstances (in particular, that his mother also filed an I-130 on his behalf and became an American citizen) that his case may be unique.

 

We need to wait and see what the actual decision was.

Edited October 29, 2006 by Randy W (see edit history)

[Randy W]

What you're seeing that I am not is this - why would he have to remain a child for the AOS?

I think what's being missed here is that the CSPA came into existence for a specific reason: Children were aging out prior to adjudication. BOTTOM LINE... The CSPA now protects certain classes from this (and not others). This was created by the USCIS adjudication backlog.

 

The more I read online, the more consistent message I see that it's about adjudication more than anything... Here are two very telling comments.. if adjudication was not the issue, then these comments would appear unnecessary... yet it seems USCIS has/had a procedure specifically to avoid the age-out by adjudication:

 

1) I-485's and aging out. It is our understanding that an I-485 will be expedited

if a dependent child will turn 21 within 6 months of filing. We are ready to

file an I-485 for an employee with a child who will turn 21 eight months from

the date of filing. Should we wait for two months to file the I-485? If not,

how can we flag the application to alert the Service Center that the

application includes a child who will age out before the normal processing

time is complete? If we have a case currently pending with such a situation,

should we fax Division I? How far in advance should we fax?

Answer:

I-485 are flagged when they come in the door if the dependent will age-out

within one year of the receipt date. The case is reviewed by a CAO in the

mailroom. If the age-out falls within 6 months, the application is fee¡¯d in

immediately hand carried to the supervisor¡¯s workstation in Division 1. If the

age-out is beyond 6 months but under 1 year, the application continues

through the process and is placed on the age-out shelf in the file room in (birth

date) order. At the point that it reaches the 6th month mark, the file is pulled

and sent out to the Age-Out Supervisor in Div. 1

Please place a sheet of paper with large print, indicating that it is an age-out on

the face of the application.

 

 

2) Under paragraph 9 of the court order (regarding age-outs), adjudication of both I-140's and I-485's will be expedited by the Service upon advance written notice to the INS for a class member with a child who would become 21 years old. Such notice must be provided at least 120 days in advance of the child's 21st birthday.

 

The laws (and examples) are all concering I-130 (or I-140) applicants for immigrant visas.

 

It seems to me that we are quoting laws that don't apply (CSPA), and forms that weren't used (I-130) and trying to apply that to the K-2 visa. It doesn't seem to fit.

 

Were K-2 visa holders aged-out BEFORE the CSPA?

 

To my way of thinking, if the CSPA doesn't apply, then we need to know the laws with regard to the K-visa's without trying to apply the CSPA. Where is the law which DOES apply to K-visa adjucation?

Edited October 31, 2006 by Randy W (see edit history)

[Randy W]

 

The laws (and examples) are all concering I-130 (or I-140) applicants for immigrant visas.

 

It seems to me that we are quoting laws that don't apply (CSPA), and forms that weren't used (I-130) and trying to apply that to the K-2 visa. It doesn't seem to fit.

 

Were K-2 visa holders aged-out BEFORE the CSPA?

 

To my way of thinking, if the CSPA doesn't apply, then we need to know the laws with regard to the K-visa's without trying to apply the CSPA. Where is the law which DOES apply to K-visa adjucation?

 

Here we go - INA Act 216:

 

The term "alien son or daughter" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage

[david_dawei]

realize that "son or daughter" for immigration purposes is defined as someone 21 or older...

[Randy W]

realize that "son or daughter" for immigration purposes is defined as someone 21 or older...

 

 

Yes, but for K-2's it says everywhere that you simply must be admitted as the son or daughter of a K-1. The only controversial paragraph is 245(d) where it uses "minor child" to refer to the "nonimmigrant alien described in section 101(a)(15)(K)" - where they are described as a person admitted as the child of a K-1.

 

Of course, it all depends on the USCIS interpretation. Right now, the case reported on VJ is being appealed, so hopefully the decisiohn won't be distributed to the other offices.