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K2 Age-Out and AOS


Guest ExChinaExpat

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Guest ExChinaExpat

I believe the US law for K2 applicants for green card changed in 2012. This change in law enabled K2 applicants who entered the US before their 21st birthday, but who turned 21 before adjusting status to get their green card. The law held that the K2 applicant's age was considered "frozen" as of the date of entry to the US.

 

I'm trying to find specific law regarding this issue from a government website or posting. Anyone here familiar with it?

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I believe the US law for K2 applicants for green card changed in 2012. This change in law enabled K2 applicants who entered the US before their 21st birthday, but who turned 21 before adjusting status to get their green card. The law held that the K2 applicant's age was considered "frozen" as of the date of entry to the US.

 

I'm trying to find specific law regarding this issue from a government website or posting. Anyone here familiar with it?

 

 

Yes, you are ALMOST correct - I'll find it for you in just a second.

 

I say ALMOST because there is no age requirement for Adjustment of Status - it's simply that the K-2 must be used before the applicant turns 21 (if I'm remembering correctly). In other words, a K-2 who HAS entered the country before the visa expires CAN adjust status.

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Guest ExChinaExpat

 

I believe the US law for K2 applicants for green card changed in 2012. This change in law enabled K2 applicants who entered the US before their 21st birthday, but who turned 21 before adjusting status to get their green card. The law held that the K2 applicant's age was considered "frozen" as of the date of entry to the US.

 

I'm trying to find specific law regarding this issue from a government website or posting. Anyone here familiar with it?

 

 

Yes, you are ALMOST correct - I'll find it for you in just a second.

 

I say ALMOST because there is no age requirement for Adjustment of Status - it's simply that the K-2 must be used before the applicant turns 21 (if I'm remembering correctly). In other words, a K-2 who HAS entered the country before the visa expires CAN adjust status.

 

 

 

Our K2 will turn 21 on 10/17/2014, which will not allow enough time to adjust status as we haven't even had the interview yet. I'm counting on this ruling to apply to her:

 

 

 

Board Sets Favorable Precedent for Children of Fiancées (K-2 Visa Holders)
The American Immigration Council's Legal Action Center (LAC) applauds the Board of Immigration Appeals (Board) for advancing family unity in its June 23, 2011 decision, Matter of Le. The Board’s long-awaited ruling favorably resolves the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. when under age 21, is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. In doing so, it rejected the Department of Homeland Security’s position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.
The Board’s decision is consistent with the position that the American Immigration Council and the American Immigration Lawyers Association advocated in amicus briefs submitted to the Board in approximately a half dozen other cases where the child turned 21 after being admitted to the United States. The noncitizens in these and the many other cases before both Immigration Judges and U.S. Citizenship and Immigration Services offices throughout the country now will be able to become lawful permanent residents as Congress intended.
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New K-2 Ruling - As of June 28, 2011, the Board of Immigration Appeals (BIA) has ruled on the K-2 issue - the finding is that the INA as amended by the IMFA does not specify a point at which the age of the K-2 visa holder should be determined. The BIA referenced prior law to come to the conclusion that the date that should be used is the date of admission to the US. The USCIS has acknowledged the ramifications of this ruling in a court briefing filed on June 28, 2011.

Under the ruling, a K-2 visa holder admitted to the United States before his 21st birthday IS eligible to adjust status, and may not be ruled ineligible on the basis of having attained his/her 21st birthday.

Looks like this was the ruling that cemented the new policy - http://www.justice.g.../vol25/3719.pdf

Matter of Hieu Trung LE, Respondent
Decided June 23, 2011


I-129F for fiancé(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 21. The USCIS has added an additional requirement – 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.

As of June 28, 2011, the USCIS is bound by a new BIA ruling - see New K-2 Ruling above - which allows adjustment of K-2's who were admitted before their 21st birthday.

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 boiled 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 (formerly) maintained 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 fiancé is no longer a fiancé. 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.

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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 fiancé 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."

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Check American Families United at http://www.americanfamiliesunited.org/ for up to date information on actions concerning Family Unification.

"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 status. "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://www.dmclaw.co...4_6_16_2009.pdf

http://www.rreeves.c...on_en_10607.php

The USCIS seems to have acquiesced to the BIA ruling, and is now allowing K-2's to adjust status, provided they were admitted to the country before their 21st birthday.


Edited by RandyW, 26 July 2012 - 05:32 AM.

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On another note -

 

it is advisable that at least ONE of the two parents be there the day of the interview. Hand him/her your passport so the VO will know you're there. They have been known to DENY K-2 visas if the parents weren't there at the consulate.
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Guest ExChinaExpat

 

On another note -

 

it is advisable that at least ONE of the two parents be there the day of the interview. Hand him/her your passport so the VO will know you're there. They have been known to DENY K-2 visas if the parents weren't there at the consulate.

 

 

Thanks for the posts Randy. Naturally my fiance is getting a little nervous about her daughter's age as she's been talking to other Chinese women about K2 immigration age out. It seems she has nothing to worry about regarding her age as long as she sets foot in the USA before her 21st birthday.

 

I don't fully understand the quote you have here. Her K1 mother will surely be with her when they go to the interview as it's required. Her biological father will not be there however.

Edited by ExChinaExpat (see edit history)
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On another note -

 

it is advisable that at least ONE of the two parents be there the day of the interview. Hand him/her your passport so the VO will know you're there. They have been known to DENY K-2 visas if the parents weren't there at the consulate.

 

 

Thanks for the posts Randy. Naturally my fiance is getting a little nervous about her daughter's age as she's been talking to other Chinese women about K2 immigration age out. It seems she has nothing to worry about regarding her age as long as she sets foot in the USA before her 21st birthday.

 

I don't fully understand they quote you have here. Her K1 mother will surely be with her when they go to the interview as it's required. Her biological father will not be there however.

 

 

 

Here is one story, which was just a day or two before my wife's interview back in 2005. - http://candleforlove.com/forums/topic/14262-ir-2-denied-1130-am-112105/ a same day reversal of a visa denial because the visa officer ASSUMED the parents weren't there (they had been denied access by the Chinese guards).

 

Another K-2 was denied the day of her son Jingyu's interview because that child's parents were not there.

 

The other parent would be YOU (for immigration purposes), her step-father-to-be.

 

The point is that neither of you will likely be allowed to attend the interview. Make sure she has a passport to place on the counter.

Edited by Randy W (see edit history)
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Guest ExChinaExpat

Another K-2 was denied the day of her son Jingyu's interview because that child's parents were not there.

 

The other parent would be YOU (for immigration purposes), her step-father-to-be.

 

The point is that neither of you will likely be allowed to attend the interview. Make sure she has a passport to place on the counter.

 

 

Really? You mean that I need to be present at the interview in China? It's my understanding that the K2 must be present, but she will of course accompany her mother there. She will be fine even if questioned alone however. Of course I will not be allowed in the area of the interview, so I'm not sure I understand the requirement for me to be there? Can you explain?

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Another K-2 was denied the day of her son Jingyu's interview because that child's parents were not there.

 

The other parent would be YOU (for immigration purposes), her step-father-to-be.

 

The point is that neither of you will likely be allowed to attend the interview. Make sure she has a passport to place on the counter.

 

 

Really? You mean that I need to be present at the interview in China? It's my understanding that the K2 must be present, but she will of course accompany her mother there. She will be fine even if questioned alone however. Of course I will not be allowed in the area of the interview, so I'm not sure I understand the requirement for me to be there? Can you explain?

 

 

 

Make sure she has proof of ONE parent (EITHER you or her mother) being in the consulate. She is over the age of 14, so the mother MAY not be allowed to attend the actual interview, unless, of course, they are interviewing together.

Edited by Randy W (see edit history)
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Guest ExChinaExpat

 

 

Another K-2 was denied the day of her son Jingyu's interview because that child's parents were not there.

 

The other parent would be YOU (for immigration purposes), her step-father-to-be.

 

The point is that neither of you will likely be allowed to attend the interview. Make sure she has a passport to place on the counter.

 

 

Really? You mean that I need to be present at the interview in China? It's my understanding that the K2 must be present, but she will of course accompany her mother there. She will be fine even if questioned alone however. Of course I will not be allowed in the area of the interview, so I'm not sure I understand the requirement for me to be there? Can you explain?

 

 

 

Make sure she has proof of ONE parent (EITHER you or her mother) being in the consulate. She is over the age of 14, so the mother MAY not be allowed to attend the actual interview, unless, of course, they are interviewing together.

 

 

I haven't been planning to go to China for the interview because for K-visas they don't even talk or interact with the petitioner. Anyway, they are going there together and as I recall they wait in the same area until called to the window. They will not be separated, but they may be called separately.

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Jesse, when we had our K-1/K-2 interview they called both the K-1 and K-2's, together to the window. I reckon they haven't changed that procedure. When they had their IR-1/IR-2 interview they did the same thing, and no, they don't interact with the petitioner in either case. Wenyan had my passport with her in both cases and it got thrown back at her in the K-1 interview. My son had to pick it up off of the floor like the ugly American was tryin' to play fetch with the Chinese dog. That woman was a real bitch...to both of them.

 

Good luck with their interviews. I hope they get a human being for an interviewer, and not some idiot playing god.

 

tsap seui

Edited by tsap seui (see edit history)
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Guest ExChinaExpat

Jesse, when we had our K-1/K-2 interview they called both the K-1 and K-2's, together to the window. I reckon they haven't changed that procedure. When they had their IR-1/IR-2 interview they did the same thing, and no, they don't interact with the petitioner in either case. Wenyan had my passport with her in both cases and it got thrown back at her in the K-1 interview. My son had to pick it up off of the floor like the ugly American was tryin' to play fetch with the Chinese dog. That woman was a real bitch...to both of them.

 

Good luck with their interviews. I hope they get a human being for an interviewer, and not some idiot playing god.

 

tsap seui

 

I'm really sitting on the fence as to whether I will go, and at this moment leaning toward going to China for the interview. There is little to nothing I can do to effect the outcome, but hopefully we've got everything in place. My biggest concern, which I'm hopeful is not an issue, is not having worked or having income for all of 2013. However, I have worked every year of life since I was 12 years old delivering newspapers and later moving up to dishwasher.

 

I returned to the US after almost six years in China in mid-January this year and began my job search. I passed on several short-term contract jobs until this full time job for the state of Texas passed my way. I filed my 2013 tax return with all zeros, and got a great employment confirmation letter from employer on company letterhead. Right now have a couple of months worth of deposits to my bank account, which I opened in Florida in the early 1980s.

 

I intend to include a copy of my employment contract in China, and also a copy of my Chinese work permit. Chinese work permits are not easy to get as most of those who work in China are English teachers, many of whom work illegally, but are able to get the company to spring for a work visa.

 

Fingers crossed big time now. It's been a lot of work to move my life back from China to the US after all that happened there and returning with only a couple of suitcases, but, things are working out. As soon as her P-3 shows up we plan to contact the consulate to get a faster interview due to the K2 age-out.

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You should be okay Jesse. They will see that you weren't just another English teacher with your job in China and you are still in a field that makes good money. I hope you sent in an evolution of relationship letter with your initial application. That was a good place to explain your employment record in detail. If not, you can still have your girlfriend submit one with your 134 form at HER INTERVIEW...IF THEY EVEN NEED ANYTHING MORE..

 

I love success stories, I'll keep my fingers crossed for you guys.

 

tsap seui

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  • 1 year later...

The Board of Immigration Appeals (BIA) has ALREADY RULED on the K-2 age-out issue. The USCIS, in denying a K-2 Adjustment of Status, would fly in the face of that directive.

 

You have this on your side - "BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court." - http://www.justice.g...gration-appeals. The DHS includes the USCIS.

 

 

 

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

 

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
.

 

 

Matter of Hieu Trung LE, Respondent
Decided June 23, 2011

 

BUT - at their website K Nonimmigrant, when the USCIS says this,

Special Considerations When Seeking Adjustment of Status as a K-2

The Section 101(b)(1) of the Immigration and Nationality Act defines a "child" as "an unmarried person under twenty-one years of age." Generally, a K-2 can seek adjustment of status as the minor child of a K-1. Therefore, if the K-2 adjusts status based on the K-1's adjustment, then the K-2 can only adjust status prior to his or her 21st birthday. Several recent developments may impact a K-2s ability to seek adjustment beyond the age of 21.

 

they are thumbing their noses at the BIA ruling, which addresses this exact issue.

 

If your K-2 is denied, you will most likely need a lawyer who understands the K-2 issue, and it's probably best to find a local lawyer familiar with your local immigration courts.

 

I have no doubt that the K-2 will be able to stay, but with some minor legal battles. You can either locate a lawyer now, or wait until you see if he's approved or not. In the meantime, you might try to bring the BIA ruling to the attention of anyone you can, such as the interviewing Immigrations Officer, or at an InfoPass appointment

 

IF he is denied, you will first get a notice of Intent to Deny. If you are going to get a lawyer, this is where you will need one. The case will be turned over to Immigrations and Custom Enforcement - THEY, not the USCIS, is who is in charge of deportation (removal) A master calendar hearing will be scheduled to determine when the removal hearing will take place.

 

Even if the ruling on the K-2 age-out goes against you, you would likely get a court-ordered adjustment of status - that is, the immigrations court can order the USCIS to award him a green card ANYWAY.

 

He can stay for as long as the hearing is pending.

 

Talk to a lawyer about the specifics of your local immigrations court.

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There is a more recent (2014) court ruling - actually an APPEAL of an unfavorable BIA ruling - which AFFIRMS the findings of the BIA regarding the age limit of 21 applying to the date of entry.

 

 

From the Wake Forest Law Review Oct. 16, 2014

Application Denied: Must Be Under 21 at Time of Entry

 

The BIA’s Interpretation of When “Minor Child” Status Must Be Established Is Entitled To Deference Under The Chevron Doctrine

 

. . .

 

In Matter of Le, the BIA had reasoned that visa eligibility is best determined on the date of an alien’s entry into the United States, because eligibility is reassessed at the port of entry, and events may occur between visa issuance and admission that could extinguish the visa.

 

. . .

 

The Fourth Circuit agreed with the BIA’s reasoning, and held that it was entitled to deference under Chevron.

 

Because Regis Was Over 21 When He Entered the United States, His Application for Adjustment of Status Was Properly Denied

The Fourth Circuit held that the BIA’s interpretation of the INA –- that a K-2 visa holder seeking adjustment of status must be under 21 at the time of admission – was a permissible construction and was owed deference under the Chevron doctrine. Accordingly, because Regis was over 21 when he entered the United States, the court held that his application for adjustment of status was properly denied, and in turn denied Regis’ petition for review.

 

 

 

That is, the USCIS denied Adjustment of Status because the Applicant was OVER the age of 21 AT THE TIME of ADMISSION to the US. The AOS denial was upheld, but the criterion that the applicant must be over 21 at time of admission was upheld.

 

The same case from the American Bar Association -

 

Regis v. Holder -- Fourth Circuit

 

Headline: Chevron Doctrine Puts Limits on "Minors" Seeking Permanent Resident Status

 

After a Chevron analysis, the U.S. Court of Appeals for the Fourth Circuit deferred to the BIA and concluded that a K-2 visa holder's permanent resident status is determined by the date of entry because a visa can be extinguished at any time prior to admission into the U.S.

In a case decided the same week as this one, Mohamed v. Holder, the Fourth Circuit did not afford the same deference to the agency and reversed the BIA's ruling.

 

 

The Mohamed v. Holder ruling mention by the ABA is a case involving "crimes of moral turpitude" - it is NOT a K-2 case.

Edited by Randy W (see edit history)
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