Form I-130

[jim&huiyun1]

My step daughter is currently a K-2 Visa Holder. We applied for her A.O.S. in late March of this year. In April, we received a I-797 stating she would need to fill out and return a I-130 ($355). She is 20 years old, her birthday being in early September 2009. Has anyone else had this situation where they had to return a I-130 for a K-2? My biggest concern is her possible age out, but even at last months infopass appointment, the immigration officer was uncertain if she ages out if not interviewed prior to her 21st birthday or if she is ok since we have submitted all requested AOS paperwork prior to her birthday. Thanks for your help

[LeeFisher3]

My step daughter is currently a K-2 Visa Holder. We applied for her A.O.S. in late March of this year. In April, we received a I-797 stating she would need to fill out and return a I-130 ($355). She is 20 years old, her birthday being in early September 2009. Has anyone else had this situation where they had to return a I-130 for a K-2? My biggest concern is her possible age out, but even at last months infopass appointment, the immigration officer was uncertain if she ages out if not interviewed prior to her 21st birthday or if she is ok since we have submitted all requested AOS paperwork prior to her birthday. Thanks for your help

I've never heard of a K-2 requiring an I-130 before, sounds like you have an IO who is an over achiever or annal retentive. The age out of a K-2 issue has gone both ways for our membership and the USCIS is not clear on how this is to be handled by the IO's.

 

I'd suggest taking the family to your local congressional office and ask for their assistance in getting the USCIS to expedite the K-1 and K-2 AOS process, as the K-2 is dependent on the K-1 and you are in a situation that congress never intended when it wrote the laws.

 

The point to make to the congressperson is that the K-2 visa can be issued up to the day before a child turns 21, but the USCIS reads the same law as that AOS must be completed before age 21. In your case their standard(lengthy) delays and undocumented requirements (I-130) may delay the case and have your daughter deported as an unintended consequence of the misunderstanding of the laws congress enacted and you would like them to help keep your family together.

[dnoblett]

I agree with Lee here. K-2 adjusts status based on their K-2, and the marriage of their K-1 parent to the petitioner, NOT on an I-130.

 

HOWEVER, this MAY require that K-1 and K-2 adjust status at the same time and that the K-1's and K-2's I-485 as sent together in same envelope, K-2's adjustment IS based on the K-1's I-485. The other option may be to send the K-2's AOS application in with a copy of K-1's I-485 NOA1 letter.

 

I-485 directions:

3. Based on admission as the fianc¨¦(e) of a U.S. citizen and subsequent marriage to that citizen.

 

A. You may apply to adjust status if you were admitted to the United States as the K-1 fianc¨¦(e) of a United States citizen and you married that citizen within 90 days of your entry.

 

B. If you were admitted as the K-2 child of such a fianc¨¦(e), you may apply to adjust status based on your parent's adjustment application.

http://www.uscis.gov/files/form/i-485instr.pdf

[Sebastian]

April, you say? It's now the end of May. Get a move on, man !!! She's got a potential AGE OUT (and if successful, a voluntary departure) staring her in her face.

 

Did you call anyone at DOS or USCIS in APRIL ? Did you make an infopass appointment ? (these are seperate things) ..

 

I had mentioned to you to make an info pass appointment for March, to try to get her IN with the mother's and younger daughter's interview - did you try to set up the info pass appointment then?

 

IMO, the paperwork has gotten crossed up.

 

I DO REMEMBER an I-130 for a K-2 being filed here by some member - but it's been about 2 years ... If I find it, I'll post it here.

 

In the meantime - please make a phone call and straighten this out.

 

I was surprised you haven't done anything with info pass - you had some good advice back in March (which I think fell on the floor) - see http://candleforlove.com/forums/index.php?...st&p=481797

 

I can understand WHY an IO might ask for an I-130 - this is a K-2 follow to join, with possibility of 'one year' window to close soon.

Edited May 28, 2009 by Sebastian (see edit history)

[Randy W]

The policy of the USCIS is to DENY K-2 applicants who are over the age of 21 at the time of the interview. They have a boilerplate denial letter they send out.

 

The law (INA) reads that they must APPLY by age 21, but the USCIS has added their own interpretation that the phrase (to adjudicate) "child of a fiance" means that she must be under 21 at the time of the interview (never mind that the fiance MUST no longer be a fiance)

 

If she is denied, you are facing a court battle that (in my judgement) you can win, but a court battle nonetheless.

 

They WILL expedite, if requested, I don't think you will have a problem. But make an InfoPass appt today.

[Sebastian]

Randy - yup - thanks for checking in - but ya know what? He raised this issue in March - and got some response / answer here, and I think he didn't see it. Now it's the END OF MAY, and his wife and younger daughter were already interviewed.

 

I am sad, he got some advice for THEN, and IMO, didn't see it or act on it. The reality - he had from March 10 (the day the older daughter arrived) to April 24 (the day of the AOS appointment for his wife and younger daughter) to make an infopass, and MAKE IT HAPPEN, but for some reason, he chose not to do that.

 

NOW it's gonna be a battle, based on the 20 yr old's calendar.

Edited May 28, 2009 by Sebastian (see edit history)

[dnoblett]

Randy - yup - thanks for checking in - but ya know what? He raised this issue in March - and got some response / answer here, and I think he didn't see it. Now it's the END OF MAY, and his wife and younger daughter were already interviewed.

 

I am sad, he got some advice for THEN, and IMO, didn't see it or act on it. The reality - he had from March 10 (the day the older daughter arrived) to April 24 (the day of the AOS appointment for his wife and younger daughter) to make an infopass, and MAKE IT HAPPEN, but for some reason, he chose not to do that.

 

NOW it's gonna be a battle, based on the 20 yr old's calendar.

Yep, the I-130 issue was brought up in one of their prior posts.

 

You also need to delay your wife's AOS while her daughter is processed. I had filed my wifes AOS when we found out that her ex would allow her daughter to come to the U.S.

 

I was not able to get the paperwork in before my wife had her AOS interview scheduled and her AOS approved. Once that happened her daughter could no longer follow on K-2 and I had to file an I-130 for her.

 

SEE: http://candleforlove.com/forums/index.php?...st&p=470457

 

Sounds like K-1's interview happened BEFORE the 20 year old's AOS interview.

 

My wifes 20 year old daughter entered the u.s. two days ago on a k-2 visa. My wife and her other daughter (9 years old) entered in august 2008 and are scheduled for their A.O.S. interview on April 24, 2009.

 

My questions are these: 1.) Will my wifes 20 year old daughter facing different A.O.S. challenges, in particular being granted a green card, than her younger 9 year old sister. Again, both hold k-2 visas. 2.) Since my wife and her younger daughter both have interviews scheduled in April, would it be worth a telephone call to the USCIS in attempt to add my wifes 20 year old daughter for an interview on the same date? I understand we will still need to submit the proper paperwork for her and have her do her biometrics prior to this happening.

 

Thanks for all input !!

http://candleforlove.com/forums/index.php?...c=35965&hl= Edited May 28, 2009 by dnoblett (see edit history)

[Randy W]

The K-1 and K-2 do NOT need to interview together.

 

Thr I-130 will not work since she would have to go home to wait for an available visa number. The Child Status Prevention Act would not kick in until that time (too late to do any good).

 

She was over 18 at the time of marriage, so she would not qualify as the child of an American citizen. Her mother would need to file for after she adjusts status, with the category being child of an LPR.

[Randy W]

The only "battle" at this point is to get the "expedite" request to take hold,

 

It should have been written on the envelope and the I-485 cover letter.

 

If they can get it entered in the file, I believe the interview will be scheduled in time.

Edited May 28, 2009 by Randy W (see edit history)

[Randy W]

If you want to write your Congressperson, they will be happy to either forward you a summary of what they are doing to stem the tide of illegal immigration, or maybe in 3 months or so, they can forward the USCIS' response.

 

Or I can post a copy of it tonight.

[jim&huiyun1]

April, you say? It's now the end of May. Get a move on, man !!! She's got a potential AGE OUT (and if successful, a voluntary departure) staring her in her face.

 

Did you call anyone at DOS or USCIS in APRIL ? Did you make an infopass appointment ? (these are seperate things) ..

 

I had mentioned to you to make an info pass appointment for March, to try to get her IN with the mother's and younger daughter's interview - did you try to set up the info pass appointment then?

 

IMO, the paperwork has gotten crossed up.

 

I DO REMEMBER an I-130 for a K-2 being filed here by some member - but it's been about 2 years ... If I find it, I'll post it here.

 

In the meantime - please make a phone call and straighten this out.

 

I was surprised you haven't done anything with info pass - you had some good advice back in March (which I think fell on the floor) - see http://candleforlove.com/forums/index.php?...st&p=481797

 

I can understand WHY an IO might ask for an I-130 - this is a K-2 follow to join, with possibility of 'one year' window to close soon.

 

Thanks to all for your advice. I will contacting our congressman to set up an appointment ASAP. Sebastian, as usual thanks for all of your constructive criticism and advice. Actually, we had a infopass appointment 2 weeks after my stepdaughter arrived in the U.S. (as you suggested) and we were told to submit the necessary AOS documents as you would with any K-2 case. We had already done so, by that time. We followed up with another appointment in April, after we received our notice that we would be required to submit the I-130 form.

[jim&huiyun1]

The policy of the USCIS is to DENY K-2 applicants who are over the age of 21 at the time of the interview. They have a boilerplate denial letter they send out.

 

The law (INA) reads that they must APPLY by age 21, but the USCIS has added their own interpretation that the phrase (to adjudicate) "child of a fiance" means that she must be under 21 at the time of the interview (never mind that the fiance MUST no longer be a fiance)

 

If she is denied, you are facing a court battle that (in my judgement) you can win, but a court battle nonetheless.

 

They WILL expedite, if requested, I don't think you will have a problem. But make an InfoPass appt today.

 

Randy, thanks for your letter. We have an infopass appointment set for next Tuesday

[Randy W]

after we received our notice that we would be required to submit the I-130 form.

 

I'd be afraid that the I-130 will be denied (if you are filing it), or set on a shelf for an "available visa number", if your wife files it. Be careful, since by then it may be too late to get an interview before her 21st birthday.

 

Again, I'll be happy to let you know what your congressman will have to say tonight.

[LeeFisher3]

Depending on the congressperson and how the case is presented to their aid you may get some traction out of it. Just because some have been blown off, give it a try. You have both a senator and representative, the representative is usually the office that helps with these things, but some senators offices have gotten involved.

 

The objective is to get the USCIS responding to requests about the case and being reminded that this is an age out situation. That and the request for an I-130 to adjust status for a K-2 should raise some eyebrows somewhere and hopefully get things moving quickly.

[Randy W]

after we received our notice that we would be required to submit the I-130 form.

 

I'd be afraid that the I-130 will be denied (if you are filing it), or set on a shelf for an "available visa number", if your wife files it. Be careful, since by then it may be too late to get an interview before her 21st birthday.

 

Again, I'll be happy to let you know what your congressman will have to say tonight.

 

 

OK - found the letter. I hadn't scanned it in, but I found it in a stack of immigration papers. It's just a 2 paragraph statement that the USCIS had informed him by telephone that he had aged out. "Under immigration law, a child must have adjusted status before his 21st birthday." - simply parroting what they had told him, and ignoring what I had to say.

 

Don't lose sight of the fact that your goal is to get your daughter interviewed before her birthday in September. The USCIS has been known to use inquiries as an excuse to delay processing. In my wife's case, they used their "improved service" as an excuse to not look into the delay in her case, and then used our "freedom of information" request as an excuse to further delay processing while it was itself processed.

 

You simply need to get your daughter interviewed - there's no time for delays.