K-2 age out

[warpedbored]

A member emailed me this today.

http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf

Matter of Le, ID 3719, 25 I&N Dec. 541 (BIA 2011)

Matter of Le, ID 3719, 25 I&N Dec. 541 (BIA 2011) - A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa.

Hopefully this nightmare is over with for many couples.

[Randy W]

Yes - someone finally sorted through all the legal jargon

we concluded that the alien fiancé(e) parent establishes visa eligibility and availability in satisfaction of section 245(a) of the Act at the time of admission to the United States with the K-1 nonimmigrant visa, provided that he or she enters into a bona fide marriage with the fiancé(e) petitioner within 90 days. The alien’s admission to the United States was selected as the appropriate date to establish eligibility for adjustment.

Thus, the two conditions for adjustment of status pursuant to former section 214(d) of the Act, under which alien fiancé(e)s and their derivative children

adjusted their status prior to 1986, were that the marriage between the petitioner and the alien fiancé(e) had to occur within 3 months of the alien’s Cite as 25 I&N Dec. 541 (BIA 2011) Interim Decision #3719 546 admission and that the applicants had to be otherwise admissible at the time of adjustment. As we observed in Matter of Sesay, the purpose of the IMFA was not to alter this process, but was, instead, to address the problem of marriage fraud. Id. at 437. Accordingly, we looked to the prior law to inform us as to how these nonimmigrants can establish immigrant visa eligibility and availability for purposes of section 245(a). Consistent with our analysis in Sesay, we now conclude that the derivative child of an alien fiancé(e) also satisfies these requirements at the time of admission to the United States with the K-2 nonimmigrant visa, conditioned on the timely, bona fide marriage of the alien fiancé(e) parent to the United States citizen petitioner. Id. at 440.

 

A BIA (Board of Immigartion Appeals) decision should pretty well be binding on the USCIS, hopefully effective immediately.

 

The two points I've highlighted were blatantly disregarded by the USCIS in all the over-21 denials.

 

http://www.justice.g.../vol25/3719.pdf

 

Great news, Chris

Edited June 24, 2011 by Randy W (see edit history)

[Randy W]

Oh, and the new dtermination would be made at the time of admission, as per "prior law"

we conclude that the age

of the derivative child at the date of admission is controlling

we find that a K-2 derivative child of a fiancé(e) visa holder must establish visa eligibility and availability in satisfaction of section 245(a) at the time of his or her admission to the United States.

Edited June 24, 2011 by Randy W (see edit history)

[Randy W]

Cool -

BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most BIA decisions are subject to judicial review in the federal courts.

 

http://www.justice.gov/eoir/biainfo.htm

[ChrisA]

Carl and Randy,

 

We will know for sure on Aug.2, 2011 at our 3rd Master Calendar Hearing, from the looks of it, we won't be having the scheduled Individual Calendar Hearing in March 2014.

I can't believe it took the BIA over 20 months to make a ruling in this matter, so the other 6 cases that are/were pending before the BIA are now moot.

[Randy W]

Carl and Randy,

 

We will know for sure on Aug.2, 2011 at our 3rd Master Calendar Hearing, from the looks of it, we won't be having the scheduled Individual Calendar Hearing in March 2014.

I can't believe it took the BIA over 20 months to make a ruling in this matter, so the other 6 cases that are/were pending before the BIA are now moot.

 

 

It looks like they reviewed the law and the arguments pretty carefully - it may be a good thing they did (take so long).

[ChrisA]

I can mostly agree with your thoughts, but between Vervokin and now that's 3 plus years to make a decision on what date should be the controlling date. Even Judges that ruled in on this matter since Vervokin were having a hard-time asscessing which date should be, at the time the petition is approved (USCIS), or the date the Visa is issued (DOS) or the last on the date the petition was filed?

 

Now the basis is date of entry which is fair.But this could also create another problem for K2's who follow to join, the standard is set, if you don't enter before 21, oh well, (SOL).

 

If it was the latter, date the petition was filed, this would fall inline with the standards of CSPA Regulations and the use of common sense.

The 1 case that I can think of is the Jiang V Still case, where she entered the US the day before turned 21.I don't have anymore information on what her current status is or if she has been deported? But it's a Victory for her and everyone else who gone though this mess.

 

It' sad, when one follows all the rules and regs to the letter of the law, and still get deined, entry before 21, marriage before 21,AOS filed before 21?

 

But it's good that they got it right, even going back to old law (prior to 1986 IMFA) to make a sound decision.

 

What happens in the future with all those who were deined previously, that a whole different matter in it's self and I wouldn't to surprised if there isn't a couple of class-action lawsuits filed against the Gov. for wrongful denial of K2 AOS's. But that for another day of exploration.

[Randy W]

But that deadline is there anyway, inherent to the visa. A K-2 visa must be USED to enter the country before the 21st birthday.

 

The petition does not include the children, except to list them as children of the beneficiary. The K-2 doesn't enter the picture until actually applied for (at the consulate). I think the age at POE will be a nice, clean non-arbitrary point to place the deadline to satisfy ALL existing legislation, without creating any NEW deadline that wasn't there previously.

 

I think the date quoted the most often prior to this ruling was the date of filing of the AOS application. This date would satisfy the same criteria, except that it would be a non-legislated CHANGE from the prior law.

 

I think the BIA did its research.

[ChrisA]

But it took a U.S District Court Decision (2007) and the 10th Cir. Court of Appeals decision (2010) to move the BIA in the right direction and not taking anything away from any of EOIR decisions for that matter, is a sense one lawyer had it right in reference to Dixon and Dawson, pre=IMFA 1986 decisions. One could look at Congress and at the way they re-wrote these changes with the IMFA, what USCIS/DHS/ICE have done with unsupported polcies by the law, those that have been affected should be in complete out-rage, I am for sure. The real question how many other cases prior to some know cases prior to 2007, were ruled wrongly, were talking about 21 years of injustice and possibility 1000 case decisions nation-wide since 1986.

[Randy W]

But the policy first seems to have taken effect in 2006- prior to that time over 21 K-2were approved. And for a couple of years following was applied inconsistently. I know Jiaying's son is happy where he is, so it's not an issue with us.

But yes you're exactly right - there are a number of people who were adversly ( and dramatically so) by this arbitrary ( actually a deliberate and conscious slight of the law) decision - in particular you and your family. You can be very proud for having stuck with it through so much

[ChrisA]

I'm happy with the decision, and like wise it comes late for you, because you were in the same situation as all other K-2's that fell into this policy mess. The end result for you was to make a decision of where you want to live, your choice was move to China to be with the love of your life, that in it's self takes balls if you haven't lived in a foreign country for an extended period of time.

 

If it came to that point from my POV, I probably would have done the same thing. Having lived in Europe for over 27 years, making an adjustment to live in another country wouldn't be hard, the key factor for me is; I don't care where I live as long as I'm happy.

 

The sad part to this mess, is all the indicators (laws, reg's and policy) and the read of the plain language of each, it's clear that nobody (Gov.) saw or chose to ignore key words or phrase contain within key paragraphs. The policies in these K2 cases were not backed by the law, are unsupported policies, this was proven in Vervokin, the Gov. couldn't show the Court where in the INA, that it said a K2 must be under 21 at the time of adjudication, therfore the Judge was put on the spot to determine which date is controlling. We spoke about this a while back about how a policy is written, of the 6 or 7 cases that followed Vervokin, where the judges ruled in favor of the K2 proves the point that policy held not water, but the Gov. continued to use this flawed policy and was using this flawed before Vervokin.

[ChrisA]

Randy and Carl,

 

Have you guy heard anything i.e.people receiving NOA's being issue since this ruling from the BIA how many people have?

Our next court date 2 Aug 2012,my error as I thought is 2 Aug 2011, there is no reason for the IJ or ICE to continue to delaying anybody there AOS that has falling into this trap. I will be speaking with our lawyer later today, and plan to make an InfoPass appointment for next week, wife still hasn't received her 10 year GC, it been more than 6 months since we filed to lift conditions

and we havn't recieved any RFE's from USCIS.If need be I will make another a appointment to ask/demand on the same date that the son AOS be approved ASAP.

[warpedbored]

I haven't heard of any Chris. Hopefully they have resolved this issue.

[ChrisA]

Carl,

 

I have read over on VJ, that some have received there NOA's right after the BIA decision came down. Right now the IJ, has no part left in deciding our case, just needs to stamp as closed. Our lawyer is currently in a session/appearence before the IJ with another case, once he's available, I'll more on how to proceed from this point.

[Randy W]

Carl,

 

I have read over on VJ, that some have received there NOA's right after the BIA decision came down. Right now the IJ, has no part left in deciding our case, just needs to stamp as closed. Our lawyer is currently in a session/appearence before the IJ with another case, once he's available, I'll more on how to proceed from this point.

 

 

I think yours would be a court-ordered Adjustment of Status, so you should get any details at this hearing or through your lawyer.

 

But yes, I would interpret the response they filed as being an acknowledgment of the ruling, and that all future K-2's will be handled correctly.