AOS Interview

[ChrisA]

I read this in the USICS AFM. I'll look agian and attach the link.

[Guest Pommey]

sorry to hear of the AOS "age out" denial, do you have a good immigration lawyer ?

[Zhou Zhou]

sorry to hear of the AOS "age out" denial, do you have a good immigration lawyer ?

 

Indeed and good attorney may help you...

[ChrisA]

http://www.uscis.gov/propub/template.htm?v...;hash=0-0-0-981

 

Randy,

 

Here is the link, tell me what you think?

[Guest jin979]

(ii) Limited CSPA Coverage Option for K2 Aliens . An alien in K2 status does not have a visa petition filed on his or her behalf under section 204. Consequently, a K2 alien cannot utilize the CSPA when seeking to adjust status. Although not required, USCIS may accept a Form I-130 filed by the USC petitioner based on a parent-child relationship between the USC petitioner and the K2 alien (e.g. where the USC petitioner has married the K1 and K2 is not yet 18 years old). This will allow an alien who once was a K2 to adjust on the basis of a petition filed u nder section 204 of the Act and will allow him/her to utilize the CSPA when seeking to adjust status in some cases.

Exercising this option requires: (1) an existing parent-child relationship between the USC petitioner and the K2 alien, and (2) paying the requisite fees associated with Forms I-130 and I-485, Application To Register Permanent Residence or Adjust Status. This guidance does not create a petitionable relationship for K2s or K4s where none exists.

 

 

As others have said better you get legal advice from a lawyer

[Randy W]

(ii) Limited CSPA Coverage Option for K2 Aliens . An alien in K2 status does not have a visa petition filed on his or her behalf under section 204. Consequently, a K2 alien cannot utilize the CSPA when seeking to adjust status. Although not required, USCIS may accept a Form I-130 filed by the USC petitioner based on a parent-child relationship between the USC petitioner and the K2 alien (e.g. where the USC petitioner has married the K1 and K2 is not yet 18 years old). This will allow an alien who once was a K2 to adjust on the basis of a petition filed u nder section 204 of the Act and will allow him/her to utilize the CSPA when seeking to adjust status in some cases.

Exercising this option requires: (1) an existing parent-child relationship between the USC petitioner and the K2 alien, and (2) paying the requisite fees associated with Forms I-130 and I-485, Application To Register Permanent Residence or Adjust Status. This guidance does not create a petitionable relationship for K2s or K4s where none exists.

 

 

As others have said better you get legal advice from a lawyer

 

 

Yes, the 'protection' is that you may file the I-130 for your 'son', if he was under the age of 18 at the time you were married.

 

Your possibilities are to sue THEM (for not doing their job of approving his AOS), or to wait (about 2 to 4 weeks) for the removal proceedings to begin. To sue them can work (their arguments are very weak), but you would need to talk to a lawyer NOW, before the removal is initiated.

 

For the removal proceedings, you would go to immigration court. The best thing to do there is to find a lawyer who knows your immigration court and the judges, and is sympathetic to your cause.

 

Either way, most lawyers (and judges) will roll over and play dead and simply parrot the USCIS view, so it's best to do some shopping (for lawyers) before you begin.

 

Only your lawyer can advise you from here. Keep us posted, and good luck!

[Randy W]

By the way, the USCIS will claim that he is overstayed by either the expiration date on the I-94, or his 21st birthday, whichever is later.

 

This does not seem to be an issue anywhere, so don't worry about it. He is entitled to stay and fight it out in the courts.

 

If he does decide to return to China after removal proceedings have started, there is a form G-146 he will get to take to the consulate for them to verify that he's back!

[ChrisA]

Randy,

 

Thanks for the Info.

 

I sent a letter to Stuart Folinsky a couple of minutes ago, requesting his assistance, will see where this leads to?

 

I'll keep you posted via PM.

 

Chris

[ChrisA]

By the way, the USCIS will claim that he is overstayed by either the expiration date on the I-94, or his 21st birthday, whichever is later.

 

This does not seem to be an issue anywhere, so don't worry about it. He is entitled to stay and fight it out in the courts.

 

If he does decide to return to China after removal proceedings have started, there is a form G-146 he will get to take to the consulate for them to verify that he's back!

 

I understand your point Randy, but his over-stay was inconjunction with the pending AOS Application filed before he turned 21, so the over-stay is moot argument form the USCIS standpoint.

[Randy W]

By the way, the USCIS will claim that he is overstayed by either the expiration date on the I-94, or his 21st birthday, whichever is later.

 

This does not seem to be an issue anywhere, so don't worry about it. He is entitled to stay and fight it out in the courts.

 

If he does decide to return to China after removal proceedings have started, there is a form G-146 he will get to take to the consulate for them to verify that he's back!

 

I understand your point Randy, but his over-stay was inconjunction with the pending AOS Application filed before he turned 21, so the over-stay is moot argument form the USCIS standpoint.

 

 

Just trying to forewarn you of what you'll hear.

 

Remember that he is entitled to stay and fight it out in court.

[ChrisA]

Got It

[Guest jin979]

good luck, keep us posted

[ChrisA]

Well,

Had a nice conversation with Stuart Folinsky today, his suggestion was to submit an Appeal, Motion to Reconsider to the Chicago Lockbox, this has to be completed within 30 day the USCIS official notice of denial. He wants a copy of the notice of denial to reference the paragraphs and sub-paragraphs the USCIS used for their basis for the denial. His thoughts in reference to the MTR is to overturn the decision from the local field office here in Phoenix.

Edited May 2, 2009 by Chris&lijun (see edit history)

[Randy W]

Well,

Had a nice conversation with Stuart Folinsky today, his suggestion was to submit an Appeal, Motion to Reconsider to the Chicago Lockbox, this has to be completed within 30 day the USCIS official notice of denial. He wants a copy of the notice of denial to reference the paragraphs and sub-paragraphs the USCIS used for their basis for the denial. His thoughts in reference to the MTR is to overturn the decision from the local field office here in Phoenix.

 

Ours quoted 8 CFR, Part 245.1( c ) - "The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident under section 245 of the Act:...(6) any alien admitted to the United States as a nonimmigrant defined in section 101( a )(15)( K ) of the Act: unless ( i ) in the case of a K-1 fiance(e)... or the K-2 child of a fiance(e)..."

 

"You are ineligible to adjust your status . . . because you are no longer a "child" who can derive status from a parent."

 

Claiming in effect that it's okay to adjust the status of a fiance who is no longer a fiance, but not a child who is no longer a child, and that derivative status is required for AOS, when it is actually only required for the visa.

 

It's been appealed to the OAA (actually by the USCIS), so I think we know what the answer there will be. In fact, I'll bet that decision was what your denial letter was based on.

Edited May 2, 2009 by Randy W (see edit history)

[ChrisA]

On June 30, 2008, you filed Application to Register Permanent Residence or Adjust Status, Form 1-485,

pursuant to Section 245 of the Immigration and Nationality Act (the Act). Title 8, Code of Federal Regulations.

Part 245.1 states in pertinent palis:

© Ineligible aliens. The following categories of aliens are ineligible to apply for adjustment

of status to that of a lawfu I permanent resident al ien under Section 245 of the Act:

(6) Any alien admitted to the United States as a nonimmigrant defined in

section 101(a)(15)(K) of the Act, unless:

(i) In the case of a K-I fiancee e) under section 101(a)( 15)(K)(i) of the Act or the K-2

child of a fiance(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for

adjustment of status based upon the marriage ofthe K-I fiancee e) which was contracted

-\vithin90.days.ofe.ntry-wit!1-the.United SL'ltes.citizel:-'.vhD fi!ed.a.p~tition on heh3lfof_

the K-I fiancee e) pursuant to Section 214.2(k) ofthis chapter;

The record reflects that you last entered the United States on June 13,2008, at Los Angeles, California. On that

date you were admitted as a nonimmigrant minor child of a fiance (K-2) of a United States citizen. Your

nonimmigrant classification was accorded under Section 214 of the Act and your visa was issued on June 6,

2008, at the United States Consulate in Guangzhou, China.

A review of the record reveals that you turned twenty one (21) years of age on July 15.2008. Because you have

turned twenty one (21) years of age, you are no longer eligible for classification as K-2 child of a fiance(e)

under Section 10 I(a)( 15)(K)(iii) of the Act. FUliher. you are no longer entitled to any of the benefits under

Section 245 of the Act. Therefore, your application must be and hereby is, denied.

 

This is the extact wording of the letter.