Petitioning Wife's Son - K1 Visa - No AOS Yet

[DEDixon 39]

(I posted this in the AOS forum, but I'm not getting a good response so I thought maybe K-1 forum is a better place)

A friend of my wife's (she is Filipina) has a few question about petitioning her son who is 20 years old and turning 21 on June 29 (9 months from now, he will be 21).

She has 5 children with just 1 below 21. Initially she and the USC didn't think to include her son on the initial application. Now that she is here, the thought entered her mind. I know she married within 90 days of arriving, however I'm not sure how long she has been here so not sure if she is out of status due to late AOS filing.

Please give a detailed reply, because I'm going to email the responses to her (she is just learning to use the computer so not posting yourself).

1. If she is out of status, does this impact petitioning her son?

2. What forms need to be submitting?

3. How much does it cost?

4. How long would it take to get him here if everything goes like it should?

5. If he starts to age out, if it gets close to his birthday, is there a fast track?

Thanks.

[payxibka 10,045]

When did your friend receive her visa? If it has been less than 1 year it might be possible

If she is unable to get him here in under the provisions of follow-to-join then he is not coming any time soon....

[DEDixon 39]

What form to file and with who?

What is "follow-to-join?"

[payxibka 10,045]

What form to file and with who?

What is "follow-to-join?"

If the alien arrived on a "K" visa then it might be possible to exercise follow to join... follow to join is the ability for a dependant to get a visa (K2 or K4). the window for application is one year from the issuance of the alien's original "K" visa.

If it is within the window then you contact the USEM directly for instructions on how they do it locally. (not all USEM's do it exactly the same)

[Stephen + Elisha 92]

Info about Follow to Join from the US Embassy-Manila website --->> http://manila.usembassy.gov/wwwh3226.html

[Gary and Alla 3,694]

What form to file and with who?

What is "follow-to-join?"

we did a follow to join for our oldest son. It is a K-2 issued within ONE YEAR on the issuance of her K-1. You call the consulate and make an interview, then do all the paperwork applications etc. (check with the consulate as Payixbka says, they all have their own procedure)

She will need to be "in status" as we had to submit at the interview a copy of Alla's green card OR the I-797c that she had filed for AOS. The K-2 is derivitive of the mother's K-1 and the K-1 process needs to be "in process" or he is not eligible. Alla already had her green card. We also had to submit a copy of our marriage certificate and at least ONE of us had to be there for the interview. That was Kiev's rules.

You will file all the same forms, pay all the same fees, medical exam, police certificate, everything as you did for the K-1. He will file to adjust status when he arrives and he must adjust status before age 21, so you better get after it now if you expect to do this. He will also pay the $1010 fee to adjust status. I am not clear if the AOS must be FILED before he turns 21 or must be APPROVED before he turns 21. But best not to waste any time. You do not need a new petition. Hopefully he was listed on the I-129f when you filed it and it asks for the names of ALL children. If not, this is something you will take up with the consulate. I know of several cases where children not listed on the petition were able to get K-2s, consulate specific

[Road 2 Peace Arch 0]

What form to file and with who?

What is "follow-to-join?"

we did a follow to join for our oldest son. It is a K-2 issued within ONE YEAR on the issuance of her K-1. You call the consulate and make an interview, then do all the paperwork applications etc. (check with the consulate as Payixbka says, they all have their own procedure)

She will need to be "in status" as we had to submit at the interview a copy of Alla's green card OR the I-797c that she had filed for AOS. The K-2 is derivitive of the mother's K-1 and the K-1 process needs to be "in process" or he is not eligible. Alla already had her green card. We also had to submit a copy of our marriage certificate and at least ONE of us had to be there for the interview. That was Kiev's rules.

You will file all the same forms, pay all the same fees, medical exam, police certificate, everything as you did for the K-1. He will file to adjust status when he arrives and he must adjust status before age 21, so you better get after it now if you expect to do this. He will also pay the $1010 fee to adjust status. I am not clear if the AOS must be FILED before he turns 21 or must be APPROVED before he turns 21. But best not to waste any time. You do not need a new petition. Hopefully he was listed on the I-129f when you filed it and it asks for the names of ALL children. If not, this is something you will take up with the consulate. I know of several cases where children not listed on the petition were able to get K-2s, consulate specific

The whole age-out thang is a source of angst for many of us. According to the Legal Intelligencer Blog: "Fortunately, there is a district court case in Northern California, Verokin v. Still (2007), that held that the K-2 visa holder must merely have been 21 at the time his adjustment of status application was filed in order to be eligible to apply for adjustment of status. In 2008 and 2009, there have been other district courts across the United States that have followed suit, thereby correcting the problems created by the local Immigration Processing Centers that erroneously denied the adjustment of status applications of K-2 visa holders because those applicants were over 21 at the time their applications were decided." I dont think anyone can rely on this case or cases without speaking to your own immigration lawyer first.

[Dakine 26]

. If she is out of status, does this impact petitioning her son?

Why is she out of status?

[DEDixon 39]

. If she is out of status, does this impact petitioning her son?

Why is she out of status?

She is out by a few days. Just late getting the last part of the medical.

[RDDIXON 0]

Digging this out again. The aforemention son who is 20 until June and in the Philippines has his birth cert corrected.

His mom came here on K-1, all her children except for the son are over 21 and all her children were listed on the 129.

His mom wants to get him here now.

QUESTION: I thought the day he turned 21, he was too old to follow on K-1 visa?

***************

Another question about the other kids who are over 21.

If the mom becomes a US Citizen (say in 4 to 5 years), how long does it take for her kids to get here after she petitions them?

And, does their marital status make them ineligible in anyway?

[JimVaPhuong 4,863]

Digging this out again. The aforemention son who is 20 until June and in the Philippines has his birth cert corrected.

His mom came here on K-1, all her children except for the son are over 21 and all her children were listed on the 129.

His mom wants to get him here now.

QUESTION: I thought the day he turned 21, he was too old to follow on K-1 visa?

***************

Another question about the other kids who are over 21.

If the mom becomes a US Citizen (say in 4 to 5 years), how long does it take for her kids to get here after she petitions them?

And, does their marital status make them ineligible in anyway?

This is now a big problem. If the visa application goes through quickly, he may get a visa and be able to come to the US. You are correct that he is technically eligible for a visa until he is 21. However, he MUST adjust status before he is 21. The CSPA does NOT protect a K2 visa holder from aging out during AOS unless the K1 parent married the US citizen before the K2 was 18 years old. Since a K2 can only be issued within a year of the K1, this particular circumstance only happens if someone comes on a K2 and their K1 parent marries before they are 18, and then they just wait an awful long time before sending the AOS petition.

Your friend now has exactly 3 months to get the K2 visa for her son, get him to the US, AND complete AOS. Good luck!

She can sponsor her unmarried children over the age of 21 while she's an LPR. They would be family second preference, category B. From the Philippines, the current wait is about 12 years. If she became a US citizen and sponsored her unmarried children over the age of 21 it would actually take longer - about 16 years from the Philippines.

If the children are over 21 years old AND married, then she can't sponsor them as an LPR. If she becomes a US citizen, then she can sponsor them as family third preference - about 18 years from the Philippines.