Stepson denied Green Card due to Age Out!

[Hanging On]

We just received the letter today from USCIS stating that my step-son had been denied his AOS due to age out. We filed the I-485 in December, 2008, and had the interview on June 5th 2009. His mother was approved the next week, but we received no response on her son until today.

They are saying he has 30 days to leave the country and there is no appeal. We had been told previously, both here in Milwaukee, and at the National 800# that there was no age out risk, since the I-485 was filed prior to his 21st birthday.

I know others have been through this. I had previously bookmarked the article on ageout:

 

http://www.asianjournal.com/pdf/PDF/2008_N...Y_sec2p%206.pdf

 

I have sent this article together with the USCIS correspondence and the I-485 to a general purpose lawyer at Pre-Paid Legal.

 

Any further suggestions, or experiences to share?

[warpedbored]

Others have fought this and won. Randy is our resident expert on the subject. I'm sure he will be along soon with some sage advice. I think I would get someone better than a general purpose lawyer though. I have heard that some legislation is being proposed that will rectify this situation. In the meantime appeal and stall. As long as an appeal is in the works he is still legal here. Good luck.

[Randy W]

The case WAS appealed at one point by the USCIS to their own Board of Immigration Appeals, and their decision reaffirmed. They have since begun applying the policy that the applicant must be under 21 at the time of adjudication, even though the law (INA) only requires that they be under 21 at the time of the application.

 

I don't think that any court has upheld the decision.

Edited August 17, 2009 by Randy W (see edit history)

[Randy W]

Aging Out of Children

 

The Chinese national may have children who wish to immigrate to the US with their parent. If the child(ren) are 17 years of age or older, it is important that you consider the age of the child and the type of visa they will get, both when making wedding plans and in planning the visas.

 

Children whose parents are applying for family visas (K-1, K-3, or CR/IR-1) may be allowed to apply for a derivative (dependent on the parent's) visa. There are age limits you need to be aware of that occur at both ages 18 and 22.

 

I-130 ¨C The child of the Chinese national must be under 18 at the time of marriage. The child (a step-child of the American citizen) is then considered the child of the American citizen for immigration purposes. The American citizen may file an I-130 for his "child". The age of the child is then fixed, for immigration purposes, at his/her age at the time of filing of the I-130 (or at the time a visa number becomes available, if the petitioner is a legal permanent resident). Provided the I-130 is filed before the child turns 21, the child's status is protected by the Child Status Protection act.

 

I-129F for Spouse ¨C If an I-129F is filed for a spouse, then his/her child may immigrate with a derivate K-4, simply by turning in the P3 and P4 forms to the consulate (an interview is required). The K-4 may be awarded up to the age of 21. However, a K-4 child must have their own I-130 filed in order to adjust status. If the child was over 18 at the time of their marriage, the American citizen may not file the I-130. Thus, a K-4 visa awarded to a child who was over the age of 18 at the time of the marriage is a dead end visa. After the Chinese citizen adjusts status, he/she can file an I-130 for the child. But as of the adjustment of status, a K-4 would go out of status, and needs to return home until such time as the I¬130 visa can be adjudicated.

 

I-129F for fianc¨¦(e) - K-2 visas may be issued to the qualified children of a K-1 fiance up to the age of 21. The INA requires that the K-2 apply for AOS before reaching the age of 22. The USCIS has added an additional requirement ¨C that the K-2 must be under age 22 at the time of adjudication. A few years ago, this requirement did not exist, and several K-2's over the age of 21 were allowed to adjust status. That seems to no longer be the case.

 

So a K-2 who is 20 years old may receive a K-2 visa, use the K-2 visa, and apply for Adjustment of Status, perfectly legal to this point, only to be denied because her/his 21st birthday occurred before the AOS interview. The USCIS seems to be using boilerplate denial letters now for this purpose (see attachment), so it is highly likely the AOS will be denied. My understanding is that the K-2 can stay in this country legally while court cases are pending, and you can ultimately win the right for the child to adjust status. Talk to your lawyer.

 

If your K-2 is 20 years old, you should ask that GUZ expedite the handling of the visa, have her/him come to this country and apply for AOS as soon as possible. The cover sheets and the envelopes should be adorned with the phrase, "Please expedite ¨C Potential Age Out". They do cooperate to that extent, and the period from applying for the K-2, to entering the country, to adjustment of status can be as short as 4 months, if everything goes well

 

For a K-2 above the age of 18 at the time the marriage occurs, it is not possible to protect his or her status by filing an I-130. Therefore, the Child Status Protection Act does not apply. The American citizen can file an I-130 only for step-children who were age 18 or under at the time of marriage.

 

The argument of the USCIS that the K-2 cannot adjust status over the age of 21 boils down to a single clause in the INA "The attorney-general shall NOT adjust the status to legal permanent resident EXCEPT for . . . the child of a K-1 fiance". They will maintain that the word "child" means that the K-2 must be a child (20 or younger at the time of adjudication, never mind the fact that the fianc¨¦ is no longer a fianc¨¦. This language was introduced after the Immigration Marriage Fraud Amendment (IMFA) of 1986.

 

Prior to the IMFA, K-2's would be "automatically" adjusted upon the marriage of the K-1 fiance to the USC petitioner. The K-2 recipient had been required to demonstrate that the age 21 requirement had been met at the time the visa was issued. No further requirement was imposed and the adjustment of status was automatic. The IMFA introduced the requirement that K-1's and K-2's must apply to adjust status. The amendment did NOT include any requirement as to the age of the K-2 visa holder.

 

As defined in the INA: Child: Unmarried child under the age of 21 years. This status is required at the time of visa issuance, but is not mentioned as a requirement to adjust status.

 

http://i26.tinypic.com/2nkur5z.jpg

 

http://i27.tinypic.com/vpckec.jpg

 

In a memorandum issued on March 15, 2007, however, the Associate Director for U.S.C.I.S. Domestic Operations stated:

The Immigration and Marriage Fraud Amendments of 1986 created a gap regarding the procedure for a K-2 alien to adjust status to that of a person admitted for permanent residence. The agency has filled the gap with the controlling regulation at 8 CFR 214.2(k)(6)(ii), which reads:

 

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 issued on or after November 10, 1986, 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. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

, 245(d) is not a general description of the eligibility of K-1s and K-2s for adjustment of status; its purpose is to place a specific restriction on their adjustment, limiting it to adjustment via the K-1's marriage to the U.S. citizen fianc¨¦ petitioner. Moreover, "minor child" in this provision refers back to "a nonimmigrant alien described in section 101(a)(15)(K)" and at the time of receiving the "K" nonimmigrant visa, as well as at the time of admission as a K-2, the alien would have been a "child."

 

http://i26.tinypic.com/2vmhawl.jpg

 

May 20,2009 - The The Reuniting Families Act of 2009 was filed in the Senate

 

See Great First Step for Families and a Major Victory for American Families United at American Families United

 

The act would fix the age of K-visa holders at the time of filing of the I-129F petition.

 

"Obeying the law while having birthdays should not be a deportable offense"

 

This court case was won on the grounds that the child is required to demonstrate that he/she is under the age of 21 at the time of visa issuance, not at the time of adjudication of adjustment of atatus. "Because the INA no longer contains a provision explaining how a K-2 child is to obtain permanent resident status, its text does not directly address this issue. Accordingly, it is instructive to look at the age requirement as it existed before Congress inadvertently eliminated the procedure by which K-2 visa holders could obtain permanent resident status."

 

Prior to the enactment of the IMFA (which "inadvertently eliminated the procedure by which K-2 visa holders could obtain permanent resident status"), a K-2 visa holder "would have had to demonstrate that he was under twenty-one when he applied for a K-2 visa. However, after he entered the United States, his status would have been adjusted to that of lawful permanent resident automatically once his mother¡¯s marriage was concluded. There is no indication that, prior to the IMFA, the Immigration and Naturalization Service considered whether K-2 applicants were still under twenty-one at the time their status was to be adjusted.

 

And, of course, the IMFA introduced no such requirement.

 

http://americanfamiliesunited.org/files/AF...on-12-21-07.pdf

Edited August 17, 2009 by Randy W (see edit history)

[Randy W]

Let us know if you need to find a lawyer who can help.

 

It'll probably be cheaper to go with a lawyer who is already familiar with the K-2 situation than to provide one with some on the job training.

Edited August 17, 2009 by Randy W (see edit history)

[Hanging On]

Let us know if you need to find a lawyer who can help.

 

It'll probably be cheaper to go with a lawyer who is already familiar with the K-2 situation than to provide one with some on the job training.

 

 

Randy -

Thanks for the help. I have found the forms for filing a motion, but I don't know what our odds are. It costs $585 just to file.

 

Question, if we don't file, does he need to leave within the 30 days stated in the letter? What happens? Can he continue to work?

 

If anyone has any recent experience fighting this madness, please share.

David and Carrie

[warpedbored]

If you don't do anything he will be out of status in 30 days if he stays here. This is really bad and could even result in a ban from the US. As long as a motion is filed he is legal to stay here until it's resolved. If he returns to China you are looking at at least a 6 year wait before a visa becomes available. My wife is a US citizen now and we filed for her unmarried son over 21 a year ago. I looked at the processing dates the other day and they are working on 2003 for unmarried children over 21 now. There is legislation pending which if passed will fix this. I've written my senators and congressman urging them to pass it.

[Randy W]

Let us know if you need to find a lawyer who can help.

 

It'll probably be cheaper to go with a lawyer who is already familiar with the K-2 situation than to provide one with some on the job training.

 

 

Randy -

Thanks for the help. I have found the forms for filing a motion, but I don't know what our odds are. It costs $585 just to file.

 

Question, if we don't file, does he need to leave within the 30 days stated in the letter? What happens? Can he continue to work?

 

If anyone has any recent experience fighting this madness, please share.

David and Carrie

 

Your odds with the USCIS are pretty close to zero. You need to work with a lawyer NOW. DO NOT let your son leave the country until you have a plan for what he will do.

 

What will happen after the thirty days is that you will get a notice to appear at a calendar hearing to schedule the actual removal hearing. Your son is entitled to stay until the legal battles are resolved. You can wait for the removal notice, but you should probably find a lawyer now.

 

OR you can file suit against the USCIS to get them to do their job of adjusting his status.

 

Both approaches have been successful. Only one case that I know of failed - that was because they had not filed the I-485 before his 21st birthday.

 

Nobody here can look over your shoulder to tell you what to do. Our son elected to return to China rather than continue the court battle.

 

He always has the option of voluntary departure, where he will be given a form G-146 to have signed at his consulate in China to verify his return

[Randy W]

I say your odds are near zero appealing to the DHS, but outside courts can order them to adjust his status. The odds then become much closer to 100%, as long as you're willing to follow through with the court proceedings.

 

We elected to NOT file the appeal, since it is simply a $585 donation.