ellis-island Posted April 7, 2010 Report Share Posted April 7, 2010 (edited) It looks like Congress screwed up big time, in the case of K4's who were eighteen or over at the time the K3 beneficiary married the USC petitioner. If the K4 was 18 or over at the time of the marriage between the K3 beneficiary and the US Citizen petitioner, he or she will not be eligible to adjust status to permanent residence after being admitted to the United States. This comes from the Department of State Website. How does a K-4 child adjust status in the U.S.? The K-4 child will not be able to file for adjustment of status in the U.S. until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence. Can those with K-3 and K-4 visas change to another non-immigrant visa category in the U.S.? K-3/K-4 visa holders cannot change status in the U.S. to another non-immigrant visa category. A US Citizen petitioner cannot have an step-child I-30 petition approved if the marriage that created the relationship occurred after the child reached 18 years of age. The Immigration & Nationality Act defines a stepchild as: "...a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;" So think about the K4 stepchild beneficiary who is eighteen or over at the time the marriage occurs. After the stepchild enters the US as a K4, he or she is not qualified to be sponsored as a step-child. Not only that, a K4 can't change to another status. And the K3 parent, eventually has to change status to permanent residence. Once that happens, the K4 derivative status dies. And the K4, who has done nothing wrong at all, is suddenly out of status. Congress could not have intended this when it enacted the LIFE Act in 2000. What is the point of allowing K4's in these circumstances to enter the US, if ultimately they cannot change to permanent resident status? Edited April 7, 2010 by ellis-island (see edit history) Link to comment
Randy W Posted April 7, 2010 Report Share Posted April 7, 2010 (edited) The Dept of State circulated a memo about this a few years ago, suggesting that these K-4's NOT be granted a visa. At least their fate is pre-determined, unlike the K-2's who are entered into a horse race to see if they can adjust status before they turn 21. The difference between K-4's and K-2's is that K-4's must have the I-130 filed in order to adjust status. K-2's may adjust status from their K-2 classification, but since the I-130 is NOT filed, the Child Status Protection Act does not apply. Edited April 7, 2010 by Randy W (see edit history) Link to comment
dnoblett Posted April 7, 2010 Report Share Posted April 7, 2010 (edited) Here is an interesting contradiction to the K-4 dilemma. http://candleforlove.com/forums/index.php?...c=34560&hl= (K-4 adjusted even though marriage was after step-child turned 18) But yes, if future step-child is 18 or older at the time of marriage, then a K-1/K-2 is the better option. Age of children is a serious consideration as to where to get married (Over there or in the states) Edited April 7, 2010 by dnoblett (see edit history) Link to comment
ellis-island Posted April 8, 2010 Author Report Share Posted April 8, 2010 (edited) Here is an interesting contradiction to the K-4 dilemma. http://candleforlove.com/forums/index.php?...c=34560&hl= (K-4 adjusted even though marriage was after step-child turned 18) But yes, if future step-child is 18 or older at the time of marriage, then a K-1/K-2 is the better option. Age of children is a serious consideration as to where to get married (Over there or in the states) It looks to me like Congress intended for K4's to adjust. Otherwise, I have to ask, "K4? For what?" In my opinion, the agencies should interpret the law that way in their regulatory guidance. Congress must have intended for K4's to be eligible for adjustment. On that link, the welcome letter is not an adjudication. Many times, applicants who are ultimately denied, receive that I-181 notice. Edited April 8, 2010 by ellis-island (see edit history) Link to comment
dnoblett Posted April 27, 2010 Report Share Posted April 27, 2010 Here is an interesting contradiction to the K-4 dilemma. http://candleforlove.com/forums/index.php?...c=34560&hl= (K-4 adjusted even though marriage was after step-child turned 18) But yes, if future step-child is 18 or older at the time of marriage, then a K-1/K-2 is the better option. Age of children is a serious consideration as to where to get married (Over there or in the states) It looks to me like Congress intended for K4's to adjust. Otherwise, I have to ask, "K4? For what?" In my opinion, the agencies should interpret the law that way in their regulatory guidance. Congress must have intended for K4's to be eligible for adjustment. On that link, the welcome letter is not an adjudication. Many times, applicants who are ultimately denied, receive that I-181 notice.Yep here is one that came up like this. http://www.visajourney.com/forums/topic/25...age__p__3896686 Link to comment
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