K2 Age-Out and AOS

[Randy W]

This memo from the USCIS claims that they will follow the guidelines from the BIA, although the web site K Nonimmigrant, says otherwise, even with an update as recent as July, 2015

 

Questions and Answers
USCIS American Immigration Lawyers Association (AILA) Meeting
October 5, 2011

 

8. K Visa Issues in USCIS Adjudications

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

In this precedent decision, the BIA held that a derivative child of a nonimmigrant fiancé(e) visa holder under INA Section 101(a)(15)(K)(iii), 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.

i. Please confirm that the USCIS will adopt the position of the BIA in the Le case.

RESPONSE: Yes, USCIS will follow the BIA’s decision in Matter of Le.

ii. Will USCIS be issuing guidance to the field on adjudicating cases covered by Le?

RESPONSE: Yes, guidance is being developed to address Le.

. . .

v. For cases in the pipeline, how should we alert USCIS to potential age-out issues and to avoid denials and NTAs?

RESPONSE: You may contact the office having jurisdiction over a pending case through normal methods (e.g. mail, InfoPass appointment, etc.).