K1/K2 USA Entrance Requirements

[Hanging On]

My fiancee and her 20 year old son attended the same interview and have received a single visa packet. Is it possible for her son to enter the USA at a later date?

[Randy W]

Yes - you would need to go bsck to the consulate to have the packets separated.

[LeeFisher3]

As Randy said this is possible.

 

Based on his age I would suggest you and your fiancee marry as soon as possible and he needs to be here so that after the wedding you can file for AOS and get his green card before he turns 21.

 

Some offices of the USCIS believe that a K-2 can not adjust status once they turn 21 and this can cause lots of heartache and legal expenses.

[Randy W]

As Randy said this is possible.

 

Based on his age I would suggest you and your fiancee marry as soon as possible and he needs to be here so that after the wedding you can file for AOS and get his green card before he turns 21.

 

Some offices of the USCIS believe that a K-2 can not adjust status once they turn 21 and this can cause lots of heartache and legal expenses.

 

 

Thanks - I didn't even notice that!

[Hanging On]

As Randy said this is possible.

 

Based on his age I would suggest you and your fiancee marry as soon as possible and he needs to be here so that after the wedding you can file for AOS and get his green card before he turns 21.

 

Some offices of the USCIS believe that a K-2 can not adjust status once they turn 21 and this can cause lots of heartache and legal expenses.

Thanks to everyone for their help. I had only been concerned with FILING the AOS before his 21st birthday (APR-11, 2009)!

How can I get clarification on this?

[dnoblett]

Thanks to everyone for their help. I had only been concerned with FILING the AOS before his 21st birthday (APR-11, 2009)!

How can I get clarification on this?

Technically if AOS is applied for before age 21 this prevents AGE-OUT, but like Lee said sometimes it is not interpreted that way.

 

SEE: http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Edited September 29, 2008 by dnoblett (see edit history)

[Randy W]

you may need to argue the case in court if your local office gives you "over 21" grief. I'll get you some more information on it when I get home.

 

The court cases on this issue are generally won.

 

The simplest way is to get the AOS application in as soon as possible, at least 6 months to a year before the child's 21st birthday.

 

 

edit - just re-read Dan's post

Edited September 29, 2008 by Randy W (see edit history)

[Randy W]

On re-re-reading Dan's post - the memo he posted a link to does not apply since no I-130 is filed. The USCIS will be VERY happy to quote this memo and point that out to you

[dnoblett]

On re-re-reading Dan's post - the memo he posted a link to does not apply since no I-130 is filed. The USCIS will be VERY happy to quote this memo and point that out to you

Yep it is always advisable to NOT test the water and file the K-2's AOS at least 6 months or more before 21st birthday, and if it get's close to 21st birthday without approval, scheduling an info pass appointment and express concern, perhaps expediting an interview, or adjudication of the K-2 to happen before 21st birthday, they could approve "Pending Name check" if they have to.

[LeeFisher3]

As Randy said this is possible.

 

Based on his age I would suggest you and your fiancee marry as soon as possible and he needs to be here so that after the wedding you can file for AOS and get his green card before he turns 21.

 

Some offices of the USCIS believe that a K-2 can not adjust status once they turn 21 and this can cause lots of heartache and legal expenses.

Thanks to everyone for their help. I had only been concerned with FILING the AOS before his 21st birthday (APR-11, 2009)!

How can I get clarification on this?

While technically filing AOS within a reasonable period after arrival should be approved without issue, that is not how it seems to be handled by some offices and how each views this is not predictable.

 

Getting them here today, getting married tomorrow, filing for AOS the next day is the safe route and they MIGHT get their green cards by his 21st birthday. I believe you should also mark the packet as a potential age out case to expedite it.

 

If he is considering waiting to come just before his visa expires, in 6 months, you should seriously reconsider this choice as it puts you too close to his 21st birthday.

 

The alternative, wait as long as you desire for him to arrive and hire a really good lawyer to fight his case as it's possible a deportation order could show up during the process. Also, set aside some money for this process as it ain't cheap.

[Randy W]

By anyone's measure, as long as he INTERVIEWS by his 21st birthday, he is okay. This relaxes your time frame a little bit, but I think Lee's 3-day plan is best.

 

The whole issue centers around the use of the word "child" in the INA Immigration and Naturalization Act - the child of a K1 fiance(e) may apply to adjust status . . . where "child" is defined as being under age 21. The USCIS applies the derivative status requirement at AOS time, even though it is only mentioned as a requirement for the visa.

 

This is the official position of the USCIS at the national level, although your local office may or may not follow it. I believe they have lost every court case, except where the application was filed after the 21st birthday. None of the cases, however, directly addresses the law.

 

If you write on the envelope "Please expedite - potential age-out", they will cooperate. In our case, however, they used the envelope as evidence against us to claim that we knew about the aging out, but dragged our feet,

[warpedbored]

Obviously the prudent thing to do is get them here ASAP, get married and file AOS. Otherwise it may take years to get the boy here.

 

Randy, what is the status of your case? I haven't been keeping up on this issue.

[Randy W]

Obviously the prudent thing to do is get them here ASAP, get married and file AOS. Otherwise it may take years to get the boy here.

 

Randy, what is the status of your case? I haven't been keeping up on this issue.

 

 

Mobility was the most important thing to him. As long as the court case was pending, he was not able to visit China.

 

He chose voluntary departure.

[warpedbored]

Obviously the prudent thing to do is get them here ASAP, get married and file AOS. Otherwise it may take years to get the boy here.

 

Randy, what is the status of your case? I haven't been keeping up on this issue.

 

 

Mobility was the most important thing to him. As long as the court case was pending, he was not able to visit China.

 

He chose voluntary departure.

So for him to come back does your wife have to file the I-130 and wait a few years?

 

If so this is a perfect example of what can happen if a K-2 ages out before AOS.

[Randy W]

 

So for him to come back does your wife have to file the I-130 and wait a few years?

 

If so this is a perfect example of what can happen if a K-2 ages out before AOS.

 

Except that it was his choice to return to China. The court battle didn't play out.

 

Yes - she would have to file the I-130, and wait about 9 years, since she doesn't want to become a citizen.