K2 Update

[Randy W]

An over-age K-2 case was won on Friday in the United States District Court for the Northern District of California:

Because K visa holders are required to demonstrate their

presumptive eligibility for permanent residence prior to entering

the United States, the subsequent application for adjustment of

status serves merely to verify that the K-1 alien fulfilled the

statutory requirement of marrying his or her U.S. citizen fiance(e)

within ninety days, and that the applicants are not otherwise

ineligible to adjust. The I-485 application for adjustment of

status lists, ¡°I entered as a K-1 fiance(e) of a United States

citizen whom I married within 90 days of entry, or I am the K-2

child of such a fiance(e),¡± as a separate basis for adjustment.

 

This guy is from the Ukraine, does not post here, or (apparently) on VJ, so I wouldn¡¯t feel comfortable disclosing any more facts about his case.

This is NOT what has been referred to as the ¡°case on VJ¡± - that case is scheduled for trial on Jan 15. They are Candle members also and have posted here under the member names natriggon and burntatbothends.

In the meantime, Jingyu¡¯s (our own) case has been put off until Feb 15, with instructions for us to get a new medical exam and basically have everything ready to adjust status. The ICE lawyer has pretty much said that we would win at that time, but that they are 100% guaranteed to appeal. An appeal would take another year, with potential appeals after that. No trips out of the country would be possible.

Jingyu has pretty much decided he¡¯s had enough of that, so we¡¯ve decided to request voluntary departure for him. His case is different in that his family and friends are back in China, and he is unable to see them until his case is resolved. During the search for a lawyer, the first two tries were with Chinese lawyers who told Jiaying that ¡°K-2¡¯s can¡¯t adjust after age 21. Just send him home, and write a letter to the USCIS¡±. So her big question through all this was, ¡°When do we buy the tickets?¡± Our current lawyer was recommended to us by Stuart Folinsky, who is the lawyer for the VJ couple.

This is no big disaster, for the reasons I¡¯ve given. Jiaying wants her son here, but will reapply as an Immediate Relative as soon as she gets her green card. The wait for over 21 unmarried children of LPR is around 10 years, but that drops to 5 years (from the original application) if she gets her citizenship.

 

It is not a victory for the USCIS, or a loss for us, and there are plenty of others waiting in line to settle the issue.

In my opinion, the whole K-2 age-out issue boils down to the law as stated in the INA Sec. 245. [8 U.S.C. 1255] :

( 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) 2aa/ 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 ) .

Does the term ¡°minor child¡± limit the adjustment of status to children under the age of 21 at the time of adjudication, or does it simply refer to the person who was admitted to the US as the ¡°minor child¡± of a K-1 fiance, similar to the way the phrase ¡°K-1 fiance¡± is used to refer to a person who is actually married at the time of adjudication?

[LeeFisher3]

I'd hold off on buying a ticket just yet.

 

If your lawyer brings up the fact that the USCIS has basically said you will win but they intend to appeal you to death the judge may have something to say about that by raising the bar on them.

 

It could also be presented as the ICE lawyer attempting to intimidate the opposition in a case outside of the courts view, which may get them a major slap on the wrist in federal court, which makes any appeal extremely harder for them to get off the ground as it would have the appearance of retaliation by the ICE attorney getting caught by the judge.

 

If you win the green card is a given, I don't believe the can delay it even if they file an appeal. So if he has a green card let him take a trip back to China for a visit.

 

Above all, don't let your wife and son give up hope.

[Randy W]

I'd hold off on buying a ticket just yet.

 

If your lawyer brings up the fact that the USCIS has basically said you will win but they intend to appeal you to death the judge may have something to say about that by raising the bar on them.

 

It could also be presented as the ICE lawyer attempting to intimidate the opposition in a case outside of the courts view, which may get them a major slap on the wrist in federal court, which makes any appeal extremely harder for them to get off the ground as it would have the appearance of retaliation by the ICE attorney getting caught by the judge.

 

If you win the green card is a given, I don't believe the can delay it even if they file an appeal. So if he has a green card let him take a trip back to China for a visit.

 

Above all, don't let your wife and son give up hope.

 

 

No - my understanding is that we would win the decision, but that they would appeal rather than give him the green card. He would be eligible to renew his EAD, but not AP.

[IllinoisDave]

I'd hold off on buying a ticket just yet.

 

If your lawyer brings up the fact that the USCIS has basically said you will win but they intend to appeal you to death the judge may have something to say about that by raising the bar on them.

 

It could also be presented as the ICE lawyer attempting to intimidate the opposition in a case outside of the courts view, which may get them a major slap on the wrist in federal court, which makes any appeal extremely harder for them to get off the ground as it would have the appearance of retaliation by the ICE attorney getting caught by the judge.

 

If you win the green card is a given, I don't believe the can delay it even if they file an appeal. So if he has a green card let him take a trip back to China for a visit.

 

Above all, don't let your wife and son give up hope.

 

 

No - my understanding is that we would win the decision, but that they would appeal rather than give him the green card. He would be eligible to renew his EAD, but not AP.

 

Would it be possible, given the circumstances,that the judge could order the AP be granted? Does he/she have that kind of latitude?

Edited December 23, 2007 by IllinoisDave (see edit history)

[LeeFisher3]

I'd hold off on buying a ticket just yet.

 

If your lawyer brings up the fact that the USCIS has basically said you will win but they intend to appeal you to death the judge may have something to say about that by raising the bar on them.

 

It could also be presented as the ICE lawyer attempting to intimidate the opposition in a case outside of the courts view, which may get them a major slap on the wrist in federal court, which makes any appeal extremely harder for them to get off the ground as it would have the appearance of retaliation by the ICE attorney getting caught by the judge.

 

If you win the green card is a given, I don't believe the can delay it even if they file an appeal. So if he has a green card let him take a trip back to China for a visit.

 

Above all, don't let your wife and son give up hope.

 

 

No - my understanding is that we would win the decision, but that they would appeal rather than give him the green card. He would be eligible to renew his EAD, but not AP.

It all depends on the wording used by the Judge, immigration judges seem to have a wide latitude at forcing the issue with USCIS. Hopefully you have one who sees the idiocy of their case and takes action to stop them from playing this silly ass game.

[Randy W]

I'd hold off on buying a ticket just yet.

 

If your lawyer brings up the fact that the USCIS has basically said you will win but they intend to appeal you to death the judge may have something to say about that by raising the bar on them.

 

It could also be presented as the ICE lawyer attempting to intimidate the opposition in a case outside of the courts view, which may get them a major slap on the wrist in federal court, which makes any appeal extremely harder for them to get off the ground as it would have the appearance of retaliation by the ICE attorney getting caught by the judge.

 

If you win the green card is a given, I don't believe the can delay it even if they file an appeal. So if he has a green card let him take a trip back to China for a visit.

 

Above all, don't let your wife and son give up hope.

 

 

No - my understanding is that we would win the decision, but that they would appeal rather than give him the green card. He would be eligible to renew his EAD, but not AP.

 

Would it be possible, given the circumstances,that the judge could order the AP be granted? Does he/she have that kind of latitude?

 

Yes - he would order the AOS, but his powers are limited in this court. The USCIS would simply appeal that order.

 

For AP, my understanding is that he is not allowed to leave the country while the proceedings are still in progress.

 

The next court has more power over the USCIS, but is more of an unknown.

Edited December 23, 2007 by Randy W (see edit history)