21 yr old K-2's

[Randy W]

I received the following discussion of the situation regarding the adjustment of status for K-2's.

 

Of the 21 yr. old K-2's who have been denied - one was appealed to the USCIS's AAO (Administrative Appeals Office) by the USCIS itself (and the ruling affirmed), another has gone to court and lost, but is appealing to the 9th Circuit Court in California (I'm not sure if this is a Federal or State court). Another was able to get an expedited interview before the K-2 turned 21, and was approved.

 

If you want to know why I am so optimistic about Jiang's appeal I will share with you my (non-legal) impression of the lower court's rationale. Folinsky argues that section 245 is not the proper authority for adjustment of K2s and he's propably techinally correct. But it seems that congress back in 1986 removed a sentence from Section 214 which discusses K visas. That sentence gave authority to adjust, almost automatically. The section was removed because congress wanted the adjustment to be conditional until the parties were married two years in order to deter potential marriage fraud. In fact the 1986 act was entitled "International Marriage Fraud Act". Obviously, the act did not intent to deter fraud by creating an age-out potential where none previously existed.

 

Nevertheless, the removal of the sentence opened the door for the USCIS to write up a regulation (8 CFR 214.2(k)(6)(ii) which reads in pertinent part.. "Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa.....the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act.

 

Folinsky argues that the regulation is not law and was unnecessary since the adjustment process was not effectively changed by the deletion of the aforementioned sentence from INA 214. I would hope that upon appeal, Folinsky will argue in the alternative, that even if the government and lower court are correct that adjustment process authority now lies in INA 245, the wording bolded above has been demonstrably misinterpreted.

 

I say "demonstrably" because the same sentence that supposedly requires the K-2 to remain a "minor child" ("minor child" is not defined in the INA, but was recently interpreted as being the same as "child" per INA definitions) at the time of application for adjustment also would require the parent to be a "K-1 beneficary" at the time of adjustment. By definition, a "K-1 beneficiary" must be an unmarried alien. However, the alien parent must be marreid to the petitioner before he/she can apply for adjustment. The only consistent interpretation, therefore, is that the terms, "K-1 Beneficiary" and "minor child" are merely appellations or labels and not definitive of status at the time of adjustment. The USCIS's illogical interpretation was followed by the District Court judge and I think that once the inconsistency is pointed out on appeal, Jiang will get a favorable ruling and I believe that the USCIS will then decide to follow this decision in all K-2 adjustment issues.

[tywy_99]

So what's going on with your wife's son, Randy?

I hope things are looking up?

[Randy W]

We talked to a (Chinese) lawyer, who told us the "cold, hard, facts" that K-2's have never been allowed to adjust after 21. I don't know if she believed me or not when I told her about Frank's daughter.

 

So, the lawyer route seems out of the question - they can charge a couple of thousand just for 'research" to figure out what we already know. The issue has already been ruled on by the AAO, and lost in the courts. I don't think any legal action we could take would be fruitful.

 

An appeal to the USCIS AAO costs $380 - and they've already ruled.

 

The legislative route is a possibility - one of the deny-ee's was in Washington last week to discuss a possible clarification to the Act. But for now, this would have to be tacked on to the current Immigration bill, which is concerned with amnesty, and may see more than a little resistance because of that.

 

So, all we can do for now is write our Congressmen (I've heard back from one), and hope for a miracle in the appeal.

 

But, for now, I think we have to plan on him going back in three months, barring a miracle in the Jiang case.

[jim_julian]

Randy, it's probably worth visiting your Representative's office in the district. Make it a personal thing with a face. With a little luck and a well conceived presentation you may even see the Representative in person.

[Randy W]

The guy from VJ went to Washington to discuss the matter more directly - this response was from the 16th Congressional District in San Jose, California

 

 

"Congresswoman Lofgren who is working on the House¡¯ version of the Comprehensive bill has asked us for short letters (say a paragraph) about our personal K-2 immigration situations that she can then enter as testimony with the Judiciary subcommittee"

 

 

Hello Randy,

 

Thank you so much for sharing your story. I have included your testimony in the document that we will be sending to the House Subcommittee for Immigration today. We have been told by congressional staffers that personal stories of the hardships caused by our current immigration laws really makes a difference, so I applaud your willingness to step forward and make your voice heard on this subject.

 

Once again, thank you for sharing.

 

Kind regards,

Andrea

[tywy_99]

The guy from VJ went to Washington to discuss the matter more directly - this response was from the 16th Congressional District in San Jose, California

 

 

"Congresswoman Lofgren who is working on the House¡¯ version of the Comprehensive bill has asked us for short letters (say a paragraph) about our personal K-2 immigration situations that she can then enter as testimony with the Judiciary subcommittee"

 

 

Hello Randy,

 

Thank you so much for sharing your story. I have included your testimony in the document that we will be sending to the House Subcommittee for Immigration today. We have been told by congressional staffers that personal stories of the hardships caused by our current immigration laws really makes a difference, so I applaud your willingness to step forward and make your voice heard on this subject.

 

Once again, thank you for sharing.

 

Kind regards,

Andrea

That looks like a step in the right direction, Randy.

The best of luck to you and your family!

[Robertw711]

I received the following discussion of the situation regarding the adjustment of status for K-2's.

 

Of the 21 yr. old K-2's who have been denied - one was appealed to the USCIS's AAO (Administrative Appeals Office) by the USCIS itself (and the ruling affirmed), another has gone to court and lost, but is appealing to the 9th Circuit Court in California (I'm not sure if this is a Federal or State court). Another was able to get an expedited interview before the K-2 turned 21, and was approved.

 

If you want to know why I am so optimistic about Jiang's appeal I will share with you my (non-legal) impression of the lower court's rationale. Folinsky argues that section 245 is not the proper authority for adjustment of K2s and he's propably techinally correct. But it seems that congress back in 1986 removed a sentence from Section 214 which discusses K visas. That sentence gave authority to adjust, almost automatically. The section was removed because congress wanted the adjustment to be conditional until the parties were married two years in order to deter potential marriage fraud. In fact the 1986 act was entitled "International Marriage Fraud Act". Obviously, the act did not intent to deter fraud by creating an age-out potential where none previously existed.

 

Nevertheless, the removal of the sentence opened the door for the USCIS to write up a regulation (8 CFR 214.2(k)(6)(ii) which reads in pertinent part.. "Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa.....the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act.

 

Folinsky argues that the regulation is not law and was unnecessary since the adjustment process was not effectively changed by the deletion of the aforementioned sentence from INA 214. I would hope that upon appeal, Folinsky will argue in the alternative, that even if the government and lower court are correct that adjustment process authority now lies in INA 245, the wording bolded above has been demonstrably misinterpreted.

 

I say "demonstrably" because the same sentence that supposedly requires the K-2 to remain a "minor child" ("minor child" is not defined in the INA, but was recently interpreted as being the same as "child" per INA definitions) at the time of application for adjustment also would require the parent to be a "K-1 beneficary" at the time of adjustment. By definition, a "K-1 beneficiary" must be an unmarried alien. However, the alien parent must be marreid to the petitioner before he/she can apply for adjustment. The only consistent interpretation, therefore, is that the terms, "K-1 Beneficiary" and "minor child" are merely appellations or labels and not definitive of status at the time of adjustment. The USCIS's illogical interpretation was followed by the District Court judge and I think that once the inconsistency is pointed out on appeal, Jiang will get a favorable ruling and I believe that the USCIS will then decide to follow this decision in all K-2 adjustment issues.

[Robertw711]

I received the following discussion of the situation regarding the adjustment of status for K-2's.

 

 

 

Hi -- Think I really need some help here. I had a lawyer for the K-1 and K-2 visas, but this aging out thing was never mentioned to me. We filed the AOS docs for both 2 months ago, but my step-daughter just turned 21.

 

She had been living in the US as a student and has a job offer from a big company that was prepared to give her some other type of visa for working here. I am terribly afraid that by messing up on this I have hurt her job and life prospects.

 

Any ideas? Should we try to appeal the anticipated denial of the AOS or go back to trying to get the job visa?

 

Any ideas here would be very much appreciated as I am rather frantic.

 

Thanks, Robert

[Randy W]

I received the following discussion of the situation regarding the adjustment of status for K-2's.

 

 

Hi -- Think I really need some help here. I had a lawyer for the K-1 and K-2 visas, but this aging out thing was never mentioned to me. We filed the AOS docs for both 2 months ago, but my step-daughter just turned 21.

 

She had been living in the US as a student and has a job offer from a big company that was prepared to give her some other type of visa for working here. I am terribly afraid that by messing up on this I have hurt her job and life prospects.

 

Any ideas? Should we try to appeal the anticipated denial of the AOS or go back to trying to get the job visa?

 

Any ideas here would be very much appreciated as I am rather frantic.

 

Thanks, Robert

 

 

Yes - this is the box that 21 yr. old K-2's find themselves in. But if she is already here on a student visa, and has a job offer with a company that is willing to sponsor her green card, that would appear to be the way to go.

 

Our situation currently is that he has received a NTA - Notice to Appear - for a deportation hearing, no date or time given. My understanding is that this means he is in line waiting for a hearing date. He will be going back at the end of July, unless something happens between now and then.

 

We elected to NOT appeal, since that would basically be making a $380 (the cost of the appeal) donation to the USCIS. That appeal has already been ruled on in another case by the AAO, and also tried in the courts.

 

The USCIS ruling is that the K-2 child of K-1 fiance must remain a child until the AOS interview, but that the K-1 fiance must NOT remain a fiance (she must in fact be married). The court case did NOT hinge on this issue, but on the fact that the AOS paperwork was submitted before the child's 21st birthday. It is being appealed, but the case won't be scheduled for a year at least.

Edited June 15, 2007 by Randy W (see edit history)

[Randy W]

By the way, it's possible that she could still get the K-2 green card. In the past, the various offices have ruled differently, but the appeal to the AAO of the case in Washington DC was actually made by the USCIS itself in an effort to force uniform rulings on all offices. It's not clear if that has been done yet.

[Robertw711]

But can she still get her EAD so she can work?

[Randy W]

But can she still get her EAD so she can work?

 

 

I believe she would (not even that is definite anymore if she's already 21), but then our son's was revoked when he failed the AOS interview by turning 21.

 

If she hires on at that company, though, wouldn't she get a work visa?

[Robertw711]

But can she still get her EAD so she can work?

 

 

I believe she would (not even that is definite anymore if she's already 21), but then our son's was revoked when he failed the AOS interview by turning 21.

 

If she hires on at that company, though, wouldn't she get a work visa?

 

She told the company that she's going to apply for AOS instead, so the company cancelled the H1-B working application for her. If she has the job, and can reapply for the work visa next year, will her EAD last for one year despite the rejection of AOS?

[Randy W]

 

She told the company that she's going to apply for AOS instead, so the company cancelled the H1-B working application for her. If she has the job, and can reapply for the work visa next year, will her EAD last for one year despite the rejection of AOS?

You might have her work with the company to see what they can do for her. The EAD has an expiration date in one year, but like I said, they can revoke it. If the company is okay with keeping her on the payroll until they can get her the H1B, there shouldn't be any problem. Delaying tactics like rescheduling the biometrics and/or the interview may help.

 

Best for all, though, would be if they approve her K-2 AOS. You might check with your lawyer to see if he knows how they handle the 21 yr old age-outs.

[Robertw711]

Randy, thank you for your response. I wish the best luck for your son.