K4 Visa & AOS

[PapaBear]

After successfully bringing my wife here on a K3, we plan on bringing my wife's daughter here on a K4. The VO at the consulate in Guangzhou readied a P3 for my wife to mail in approximately 3 months before we wish the daughter to go for her interview and get said K4.

In researching this, I have discovered that an I-130 need not be completed for the daughter to receive a K4......but once she arrives in the US, she must complete an AOS to gain permanent residence status. I had to research this because we had previously been told by the American Embassy in Beijing that her daughter could not come because she had attained the age of 18 prior to our marriage.

I have the I-130 application in hand and it also states that if the beneficiary is a step child of the petitioner and had her 18th birthday prior to the marriage between her mother and myself, she is not eligiable to be filed for.

Is this a "Catch 22" or what? We can get her here on a K4, up to the age of 21......but how do we successfully file an I-130 for her?

Stumpped.....with my head stuck in the honey jar,

PapaBear

[PapaBear]

Seventeen views........and no replies? This is shameful folks!

 

Bringing it back to the top in hopes for some kind of input! Come on!!

 

 

 

PapaBear

[PapaBear]

Thanks anyway, Donahso. I realize the majority of members here on CDL are K1 applicants.....but the same situation could apply to those whose SO's have children between the ages 18-21. Seems like with a large member base, someone might have experienced this same delima.

 

Here's hoping someone will still help me out. Otherwise, I guess I'll have to look elsewhere. Thus far, I've avoided seeking the services of an immigration lawyer.

 

Thanks again, Donahso.....I appreciate your input and help to others where you can.

 

 

PapaBear

[Guest blsqueaky]

Wish that I could help here, put having no children myself, something that I never looked into. I know that there is someone out there that has been through this.

[lassetter]

PapaBear:

 

I have experience with your question. I have faced this exact problem. I did get legal advice. It is bad news. It is a catch-22. If your wife's child was over the age of 18 when you married you will face difficulties.

 

Your wife's child is NOT your step-child for immigration purposes. Therefore,

you cannot file a I-130 on her behalf. Your wife can file a I-130 when she becomes a permanent resident. But it would be a long-time before the child could come to the USA.

 

Your wife's child can come to the USA on a K-4 Visa but the VISA is a dead-end visa that will expire on the child's 21st birthday.

 

There are no provisions for changing a K-4 visa it to some other type of visa. They are strict on this.

 

You must see a lawyer.

I am sorry not to give happier advice.

Rupert

[PapaBear]

Thanks for the input from everyone.....we really appreciate the effort of CDL members to help out with this. I am usually pretty good at deciphering the language/instructions given on government immigration forms.

 

There definitely is a "Catch 22" between issuance of the K visa for a unmarried child (aged 18-21) and the AOS process, once that child gets here.

 

I suppose there would be no problem if the child's mother and I had married before her 18th birthday......but this is not the case. The confusion comes to play when Guangzhou advised that she could be issued a K visa.....it's just the AOS process that throws a monkey wrench into the issue.

 

I will still seek out an answer from an immigration lawyer.....but at this point, we're not holding our breath. The hard part is telling her daughter and relatives in China that she won't be able to come live with us. We're holding off on that until we get a definative answer to this dilemma.

 

Still hoping for a miracle!

 

PapaBear & Peipei

[lassetter]

Papa Bear:

 

Were you able to find out anything? As of now the best we could do was have my step-daughter come to the USA on a K-4 visa until she became 21. She would then have to return. It is a catch 22 as far as I can tell.

 

Rup

[tywy_99]

I'll tak a stab at it....

 

Youir wife can file the I-130 for her daughter once your wife gains LPR.

 

Does that make any sense?

[david_dawei]

Here is what is in the FAQ:

 

Q.2.7 My SO has a child, where can I look for info?

 

A.2.7.1

 

"Age out" cases involve the children of principal aliens or U.S. citizens. Sometimes, if these children turn 18 or 21 (depending on the type of benefit sought) before their case is processed, they will lose the benefit they are seeking. If your case falls within this category, please indicate on your application that it is an "Age Out" case.

 

Please note: The above statement may no longer apply to your individual case. On August 6, 2002, President Bush signed into law the Child Status Protection Act (CSPA). This law changes the "Age Out" rules in effect prior to signing of the CSPA which were previously defined under the Immigration and Nationality Act (INA). Under the new law, a child will be prevented from "aging out" due to service processing delays.

 

 

 

A.2.7.2

 

CSPA in regards to Step-children:

 

"Under INA Section 101, a step-child can only be considered a "child" for immigration purposes if the relationship was formed before the child reached the age of 18. Therefore, when the step relationship is formed after the age of 18, the U.S. step-parent may not be able to sponsor the step-child although he or she could still accompany the natural K-3 parent on a K-4 visa. A child caught in such a gap would presumably be sponsored by the natural parent when he or she becomes a permanent resident."

 

 

 

A.2.7.3

 

CFL:

 

K-1; K-2 her son turns 18!, NVC hell pushes son into adulthood

 

http://candleforlove.com/forums/index.php?showtopic=13150

 

 

 

K-1/2 Visa app for fiancee & child, Proof of Guardianship???

 

http://candleforlove.com/forums/index.php?showtopic=13167

 

 

 

K1/K2 Brown Envelope

 

http://candleforlove.com/forums/index.php?showtopic=12786

 

 

 

See P3 FAQ.

 

 

 

A.2.7.4

 

More info:

 

 

 

How Do I Bring My Child, Son or Daughter to Live in the United States?

 

http://uscis.gov/graphics/howdoi/child.htm

 

 

 

Petitioning Procedures: Bringing a Child, Son or Daughter to Live in the United States

 

http://uscis.gov/graphics/howdoi/childproc.htm

 

 

 

How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?

 

http://uscis.gov/graphics/howdoi/agingout.htm

 

 

 

The Child Status Protection Act (CSPA):

 

http://uscis.gov/graphics/lawsregs/handboo...A092002_pub.pdf

 

 

 

DOS Cable on CSPA:

 

http://www.shusterman.com/cspa-dos103.html

 

 

 

An Analysis Of The Child Status Protection Act - Updated

 

http://www.ilw.com/lawyers/articles/2002,1009-mehta.shtm

 

 

 

Visa Journey:

 

http://www.visajourney.com/forums/index.php?pg=child

 

---

 

 

 

Q.5.9 A stepchild who was over 18 but under the age of 21 when they married?

 

 

 

A.5.9.1

 

The K-4 qualifications are defined as the minor, unmarried child under 21 years of age of a qualified K-3 applicant. Yet, 'stepchild' as defined under INA 101( b )(1)( B ) is being under 18 years of age when the relationship was made. By the K-4 being over 18, the USC cannot file the I-130 on their behalf due to this definition and it just seems to get more complicated from there.

 

 

 

A.5.9.2

 

This is an area that is different for K-1 than K-3. K-2 the child only need be under 21 and unmarried at time of interview. As I understand it there is a formula for K4 beneficiaries that has something to do with the child¡¯s age at the date of marriage.

[lassetter]

I'll tak a stab at it....

 

Youir wife can file the I-130 for her daughter once your wife gains LPR.

 

Does that make any sense?

178762[/snapback]

Yes Tywy 99, you are dead right. That is the only way. It will take years. My wife will file an I-130 for her daughter. Sadly the K-4 visa does NOT permit her to stay in the USA because she was over 18 when we married. Her K-4 visa would only permit her to stay in the USA until her 21st birthday. Not worth disrupting her education.

 

Rup

[lassetter]

Thanks for the info:

----------------------------------------------------------------------

A.2.7.2

CSPA in regards to Step-children:

"Under INA Section 101, a step-child can only be considered a "child" for immigration purposes if the relationship was formed before the child reached the age of 18. Therefore, when the step relationship is formed after the age of 18, the U.S. step-parent may not be able to sponsor the step-child although he or she could still accompany the natural K-3 parent on a K-4 visa. A child caught in such a gap would presumably be sponsored by the natural parent when he or she becomes a permanent resident."

----------------------------------------------------------------------

Sadly, this is the key to the problem. Does this force the step-child to leave the USA once she/he reaches the age of 21? I see no way around this for K-3/4 applicants. The K-4 visa appears to be a dead-end visa as far as I can see. I

 

Rup

Rup

[frank1538]

I may be dead wrong, but isn't the I-485 an option, filed simultaneously with the I-130 as soon as the mom get LPR status?

[lassetter]

Frank: You could be correct. But when a person files the AOS form they must provide the I-130 form as part of the supporting evidence for the person changing status. A stepchild over 18 years of age WILL NOT HAVE an I-130 filed, unless the marriage was before the child reached the age of 18. That's the catch.

 

I think it all goes back to the catch-22 that Papa Bear wrote about a few months ago. First, a child over the age of 18 is not a child for immigration purposes - they are a daughter or son. Secondly there is a very real difference between a stepchild over 18 and under 18 at the time of marriage. Thirdly, their is a clear distinction between an American citizen's child and an immigrant's child. Yes, a stepchild who was over the age of 18 at the time of marriage can come into the country as a K-4. However, they cannot adjust status until their parent (not stepparent) obtains permanent residency and files an I-130 filed on their behalf. Of course, their K-4 visa expires on the day that the parent receives their green card! The child cannot cannot switch from a K-4 visa to any other type of visa. As I understand it they are at the end of the road.

 

I would love to be wrong! Believe me.

 

Rupert

[Guest pushbrk]

Frank:  You could be correct.  But when a person files the AOS form they must provide the I-130 form as part of the supporting evidence for the person changing status.  A stepchild over 18 years of age WILL NOT HAVE an I-130 filed, unless the marriage was before the child reached the age of 18.  That's the catch. 

 

I think it all goes back to the catch-22 that Papa Bear wrote about a few months ago.  First, a child over the age of 18 is not a child for immigration purposes - they are a daughter or son.  Secondly  there is a very real difference between a stepchild over 18 and under 18 at the time of marriage.  Thirdly, their is a clear distinction between an American citizen's child and an immigrant's child.  Yes, a stepchild who was over the age of 18 at the time of marriage can come into the country as a K-4.  However, they cannot adjust status until their parent (not stepparent) obtains permanent residency and files an I-130 filed on their behalf.  Of course, their K-4 visa expires on the day that the parent receives their green card!  The child cannot cannot switch from a K-4 visa to any other type of visa.  As I understand it they are at the end of the road.

 

I would love to be wrong!  Believe me.

 

Rupert

179040[/snapback]

Yup. (Sorry Trigg but I've been using that for a long time and I might be almost as old as you.)

 

http://travel.state.gov/visa/immigrants/ty...s_1315.html#15c

 

How does a K-4 child adjust status in the United States?

 

The K-4 child will not be able to file for adjustment of status in the United States 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 United States?

 

K-3/K-4 visa holders cannot change status in the United States to another non-immigrant visa category.

Edited December 31, 2005 by pushbrk (see edit history)

[Guest pushbrk]

I'm not so sure a K-4 becomes void when the K-3 adjustment completes. I'd want to see the official citation before accepting that as truth.

179059[/snapback]

Click the link in my post. I copied the text directly from the link.

 

http://travel.state.gov/visa/immigrants/ty...s_1315.html#15c

Edited December 31, 2005 by pushbrk (see edit history)