Age 21 K-2 AOS Denial

[Randy W]

We got our Notice of Denial yesterday for the AOS application for Jiaying's son Jingyu. They referenced 8 CFR, Part 245.1©, which is different from previous cases (if I remember right) where they referenced Section 245(d) of the INA. It still basically hinges on the fact that he was 21 at the time of the interview on April 9.

 

The previous case was denied at the Washington, D.C. office. The USCIS then, late last year,appealed their own denial, in order to set a precedent for the rest of the country. Their decision was upheld by the AAO (Administrative Appeals Office). Another case was taken to court by the applicant. That case was summarily dismissed in favor of the USCIS just last month.

 

The only action they are taking at this point is the denial, and to revoke his Employment Authorization, effective May 1. There is no mention in the letter about when he might have to leave the country.

 

There is also no mention in the letter of how to appeal.

 

His NOA1 for the AOS application was Dec 14, 2006, and his 21st birthday was Dec 17, 2006. The interview date was April 9.

 

My question is this (for someone with knowledge of AOS denials):

 

It seems to me that between the two cases, one of which was appealed to the AAO and denied, and the Jiang case, which was decided on the motions in March, is it possible that an appeal on our case might be summarily denied? Or is it possible that we might buy a little time with an appeal.

 

Without Employment Authorization, though, the appeal might just spin his wheels with nowhere to go. Would an appeal restore his Employment Authorization?