K2 AOS at age 20.96

[Randy W]

We got Jingyu's AOS and EAD applications in the mail yesterday (and I think he already has a job lined up for when he's legal).

 

For those who didn't keep up earlier, there was a case reported on VJ where deportation proceedings were initiated against a K2 for the unforgivable offense of turning 21 while waiting for adjudication of his case.

 

Well, Jingyu expects to commit the same offense on Dec. 17.

 

The INA law reads:

 

Section 245(d)

(d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) (relating to an alien fiancee or fianc¨¦ or the minor child of such alien) 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).

The Washington DC USCIS office interprets the bolded portion to mean that the alien must be a minor (under 21) at the time of the AOS.

 

Further:

The District Office requested a "certified" decision from the AAO because they felt that these other offices had made a MISTAKE in giving adjustment of status to those over 21 and wanted a decision that would be made "policy" throughout the USCIS, as to how these cases should be processed and the AAO was in agreement with the Washington DC District Director - no eligibility to adjust once they reach the age of 21, whether they had applied for it before they were 21 or not.

Other USCIS offices and lawyers have agreed that the language is simply to refer to the K-2 alien, not to place any restrictions on the case.

 

But this case is headed for court and hopefully will tie up the "certified" decision from becoming policy (and hopefully be won).

 

So I listed his immigration status as "Non-immigrant lawfully admitted as the K-2 son of a K-1 fiance" to try to correspond to the 245(d) verbage as much as possible. And I wrote "Please EXPEDITE - Potential Age-out" all over the envelope.

 

 

 

Many thanks to Giron40 and family on VJ, and frank1538 and burnedatbothendswho discussed the situation extensively here on CFL

[tywy_99]

That barely leaves enough time to get the NOA1 receipt notice, (a couple of weeks.)

 

Good luck on it, Randy. Keep us posted!