K4 Visa & AOS

[obxtrainman]

For all you neewbies,,If you want a clear concise answer to a question, read what Frank, and Donasho have to say. There are many intellegent people on this forum. I'm not trying to take anything away from the many members that post great info here. I've been here for a little while now. I see that Donasho, and Frank are quite a bit more than "Sea Lawyers"

[Guest pushbrk]

The State Department has nothing to do with it. USCIS in the Department of Homeland Security does. Check out their site.

179064[/snapback]

It's kind of a circular request to comply with, Don. The USCIS website says....

 

Visa Information

 

The Department of State is responsible for providing visa numbers to foreign nationals interested in immigrating to the United States. To find out more about the Department of State's visa process visit the Department of State or click here for specific information on how to get an immigrant visa number.

 

Apparently, the USCIS is responsible for administering the DOS Visa process. Details of any guidelines are found at the link I provided. If you think there's contradictory information available from USCIS, I invite you to knock yourself out finding it.

[Guest pushbrk]

The State Department has nothing to do with it. USCIS in the Department of Homeland Security does. Check out their site.

179064[/snapback]

It's kind of a circular request to comply with, Don. The USCIS website says....

 

Visa Information

 

The Department of State is responsible for providing visa numbers to foreign nationals interested in immigrating to the United States. To find out more about the Department of State's visa process visit the Department of State or click here for specific information on how to get an immigrant visa number.

 

Apparently, the USCIS is responsible for administering the DOS Visa process. Details of any guidelines are found at the link I provided. If you think there's contradictory information available from USCIS, I invite you to knock yourself out finding it.

179068[/snapback]

Someone already in the US doesn't need a damn visa.

179072[/snapback]

Whatever it is I'm missing, I'm still missing it. Maybe I'm just dense. If a person enters the United States using a valid Visa and the validity expires for any reason, they have a problem that needs to be solved. You are suggesting an adjustment of status as a solution. In this instance, what is the justification for the adjustment of status and to what status are they adjusted while waiting for the I-130 to be processed?

[obxtrainman]

The State Department has nothing to do with it. USCIS in the Department of Homeland Security does. Check out their site.

179064[/snapback]

It's kind of a circular request to comply with, Don. The USCIS website says....

 

Visa Information

 

The Department of State is responsible for providing visa numbers to foreign nationals interested in immigrating to the United States. To find out more about the Department of State's visa process visit the Department of State or click here for specific information on how to get an immigrant visa number.

 

Apparently, the USCIS is responsible for administering the DOS Visa process. Details of any guidelines are found at the link I provided. If you think there's contradictory information available from USCIS, I invite you to knock yourself out finding it.

179068[/snapback]

Someone already in the US doesn't need a damn visa.

179072[/snapback]

Whatever it is I'm missing, I'm still missing it. Maybe I'm just dense. If a person enters the United States using a valid Visa and the validity expires for any reason, they have a problem that needs to be solved. You are suggesting an adjustment of status as a solution. In this instance, what is the justification for the adjustment of status and to what status are they adjusted while waiting for the I-130 to be processed?

179077[/snapback]

You said it, not us

[lassetter]

Pushbrk does cite text that seems to make it clear that K-4 visa holders are dependent on their parents (natural and step) status at the time of marriage and the age of the child. 18 is the key. We all know that a stepparent can't file an I-130 on behalf of a stepson or daughter in this situation we have been writing about. That makes AOS impossible - I think.

 

I don't see anything written anywhere that contradicts the brutal fact that my stepdaughter is wasting her time come to the USA if it means that she cannot adjust her status to LPR and cannot switch from a K-4 visa to some other type of visa (like student F-1). She will have to leave the USA. My wife can file an I-130 for her daughter when she adjusts status.

 

If all that we believe is true then at some point we do need to alert all CFL members of this problem - it is a very serious consideration for some families. A pinned post with the relevent law could help other members.

 

Rup

[dustyone]

I may have done it wrong but what I did when I filed for my wife and son to come to the u.s. was.

 

Filed I-130 for both of them and then filed the I-129f And listed both of there names on it. And if the miss info line was right when they get here I can adjust status on both of them. Did I miss something ?

 

patrick

[Trigg]

For all you neewbies,,If you want a clear concise answer to a question, read what Frank, and Donasho have to say.  There are many intellegent people on this forum.  I'm not trying to take anything away from the many members that post great info here.  I've been here for a little while now.  I see that Donasho, and Frank are quite a bit more than "Sea Lawyers"

179066[/snapback]

You take nothing away from the rest of us--Don and Frank always give the #1 advice on the board-even I pay attention when they talk and I'm attention deficit disordered!!!!!!!!!

 

Hey!! but i'm cuter!

[tywy_99]

I'm not quite following you Rupert.

What is your current family status? ie., stepdaughters age, location, etc.

 

Is she here on the K4? and if so, when will it expire? Or is she still in China awaiting the visa.

 

You know, this thread has been following hand-in-hand with mei1964's thread. Have you looked at the info in that thread?

 

There is always cracks and pitfalls in the system but there are measures in place to work around them, the "contradictories" that is.

 

It was similiar with my K4 stepdaughter but not the same situation.

 

So not all is gloom and doom. Weigh out the most efficient, econimical and quickest way for you and your family, and apply it.

 

A sidenote:

 

I have found out that to get any reliable information from the USCIS or any of the other agencies involved is to MAIL them the old-fashioned way! Except for basic case information, the helplines are a gross waste of time.

[frank1538]

I am not an immigration lawyer, but I slept at a Holiday Inn once. So, what I say should be taken with a grain of salt. Here is my thinking on the K-4 AOS issue. Let's assume a K-4 is issued to an unmarried child of the alien spouse (K-3) who was over the age of 18 when the marriage took place but under age 21. Both come to the US on their K visas. The USC had filed an I-130 for the spouse (a prerequisite to getting the K-3), but could not and did not file an I-130 for the child because the child was over age 18 when the marriage took place. The alien spouse files the I-485 to adjust status from K-3 to legal permanent resident. After approval of LPR status, the alien files the I-130 for the child, and the child files the I-485 to adjust status from K-4 to LPR. Both are filed together.

 

Issues that I see:

 

1. The child's status as K-4 will likely terminate when the parent becomes an LPR:

 

"...K-4 status will be terminated when the alien turns 21 years of age or is married. Section 101(a)(15)(K)(iii) of the Act limits the K-4 classification to the ``minor children'' of K-3 aliens. If the K-4 alien turns 21, he or she is no longer a child as defined in section 101((1) of the Act. Therefore, in the event either of these occurs, the K-4 alien's status will terminate. This is another incentive for the citizen petitioner to file Form I-130 on behalf of the K-4 alien child as soon as possible, so that the child may adjust status as soon as possible. Once the K-3 spouse obtains LPR status, there will be no basis for the K-4 dependent's status."

Federal Register from http://www.ilw.com/immigdaily/News/2001,0815-Kvisa.shtm

 

The effect of terminating K-4 status seems to be the accrual of unlawful presence in the US. To me this is similar to what happens when an I-485 is filed for a K-1 after marriage and after the K-1 expires. In my mind unlawful presence goes to the ban on entry to the US (less than 180 days is okay; more than 180 days gives rise to a 3 or 10 ban on admission). Since the alien is already in the US, the potential ban may not be a significant issue unless the alien has accrued more than 180 days of unlawful presence and leaves the country for some reason while the I-485 is pending.

 

2. Can an I-485 be filed for a K-4 when the I-130 is filed by the parent/LPR?

 

The I-485 instructions say that an I-485 may be filed if it is being filed along with a completed relative petition (I-130), special immigrant juvenile petition or special immigrant military petition which if approved would make an immigrant visa number immediately available.

From the I-485 instructions. http://uscis.gov/graphics/formsfee/forms/files/i-485.pdf

 

As a general rule, visa numbers are not immediately available to petitions filed by legal permanent residents on behalf of family members, suggesting that the I-485 cannot be filed by the K-4 when the LPR files the I-130, but the following suggests that this may not be a problem with AOS applications file by a K-4:

 

"...Those admitted as K-3/K-4 aliens do not have to wait for a visa number to become current and may apply for adjustment at any time following the filing of the Form I-130 petition (or both may be filed concurrently for the K-4)."

Federal Register from http://www.ilw.com/immigdaily/News/2001,0815-Kvisa.shtm

 

Needless to say, this is a very complicated area and the advice of an experienced and competent immigration lawyer is strongly recommended if someone finds himself or herself in this situation.

Edited December 31, 2005 by frank1538 (see edit history)

[david_dawei]

nice job frank.. this does seem to be the crucial issues... timing of visa termination and if this meets a "properly filed application"...

 

 

This is from the AOS FAQ:

 

Q. What happens if her K3 visa expires?

 

A.

From the Federal Register:

 

37. According to the INS rule, the alien spouse of a U.S. citizen and a child of that spouse who are already in the United States may have the U.S. citizen file an I-130 petition on their behalf with INS; the alien spouse and his/her child may then file with INS for an adjustment of status to LPR. While either of these are pending, the alien spouse and his/her child may remain in the United States without accruing unlawful presence, and they may also obtain work authorization and permission to travel outside the U.S., and they may continue to do so without K3/K4 status or visa.

 

A.

From INS memo:

 

"Aliens with properly filed applications for adjustment of status under both sections 245(a) and 245(i) of the Act will be considered aliens present in the United States under a period of stay authorized by the Attorney General."

 

A.

The K3/K4 status does not change *because* an AOS application has been filed. The K3/K4 status expires on its own, generally after two years. However, after the K3/K4 status has expired, but prior to gaining approval for permanent residency, the status will be a "period of stay authorized by the Attorney General", based on being an Adjustment Applicant who is awaiting a decision regarding an adjustment of status application.

 

A.

More info:

 

INS Memo on unlawful presence

http://www.americanlaw.com/unlawfulmemo1.html

 

State Department Cable (on Federal Register)

http://www.immigrationlinks.com/news/news1125.htm

 

Federal Register:

http://www.nallaseth.com/documents/NewK1Rules.htm

 

---

 

From DOS cable:

6. However, as the INS rule explains, the K4 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 LPR status, but the child would have to wait for an available visa number. Finally, according to the INS rule, as the immigrating parent, upon adjusting status, "would no longer be in K-3 status, the child would no longer be in lawful K-4 status, since this is merely a derivative classification", and that child would begin to accrue unlawful presence. As the K3/K4 may not change status in the United States to another NIV category (see below), the continued lack of an I-130 petition will eventually create adjustment of status problems for the K4. K4s who do not meet the definition of stepchild in INA 101( b )(1)( b ) because the stepchild relationship was not established before the stepchilds 18th birthday will face the same problem K2 derivative children of fiances have long encountered, i.e., the U.S. citizen spouse will be unable to file the I-130 petition on their behalf. In these cases, the K3 will have to file the petition when he/she obtains LPR status.

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

[warpedbored]

What I find confusing about all this is why doesn't the same rules apply to K-2? An under 21 K-2 can accompany the parent as long as they file AOS before the 21st birthday. I suspect a loophole in the life act is why.

[lassetter]

What I find confusing about all this is why doesn't the same rules apply to K-2?  An under 21 K-2 can accompany the parent as long as they file AOS before the 21st birthday.  I suspect a loophole in the life act is why.

179275[/snapback]

I don't know if they are different. It is an interesting point. As I understand it there is no difference. True, a K-1 visa petitioner files an I-130 after marriage in this country. But the I-130 rules still apply - a petitioner CANNOT (no and ifs or buts) submit an I-130 on behalf of a stepSON or stepDAUGHTER if they reached 18 by the time of the marriage. Then the catch-22. When the stepson or daughter reaches 21 or the natural parent "adjusts status" they are not in compliance with the K-4 rules.

 

Yes, it is true, the LPR can file an I-130 but the wait for an immigration number is six to seven years. The stepson or daughter has no visa - they must leave.

 

Rup

[tywy_99]

A K1 visa petitioner doesn't file an I-130. The K1 visa petitioner files the I-129F. The K1 is a fiancee visa and the rules are different than in the K3 marriage visa. The K1 visa holder files the appropriate paperwork, namely the I-485, after marriage to adjust status to a LPR.

 

Six or Seven years?....maybe if you are an LPR petitioning for your brother and sister from Afghanistan. But for an alien already inside the US and filing the I-485 and the I-130 concurrently, I hardly think so.

In addition, once the I-130 and the I-485 are accepted by the USCIS, the applicant has legal presence status in the United States. They don't have to leave. And with an EAD card will be able to work, get a DL, a SSN, etc.

[lassetter]

It is difficult. it is a particularily inhumane regulation if I am right. I know that a LPR can file an I-130 but can they file to adjust the status of a K-4 visa that has technically expired.

 

This thread is identical to the topic being discussed by MEI1964.

 

Perhaps we can move there.

 

Rup