K2 adjustment of status

[abq06 0]

Hi guys. I'm confused about the adjustment of status of k2 and the CSPA.

Will k2 need to file I-30 to adjust status or this is applicable to k4 only?

I also read that Child Status Protection Act does not apply to k2. Is this correct? The k2 was 20 years old when the marriage between the US citizen and the K1 occured. I also read something about the marriage should happen before the k2 is 18 years old. This confuses me.

Will the K2 be able to adjust status without encountering problems if she is 20 years old when USC and K1 marriage occured?

If she can't adjust status because she is already 20 when the marriage took place, what should be done to adjust the k2 status?

I hope someone can share inputs. Thanks in advance.

K-2 does not need the I-130 IF the adjustment is applied for a visa issued within ONE YEAR of the mother's visa and the child is single and under age 21. Age restrictions of the CSPA does not apply. K-2 can adjust even if the relationship was formed after 18 (but must be under 21 when they FILE for AOS)

Gary, not to throw a wrench in your explanation but basically to understand the "age-out" "Gotcha" at 21 years of age for K2's. While I consider it to be highly logical that once the K2 has arrived in the US and filed for AOS at age 20, my understanding is that if the K2 is not approved by the time the K2 becomes 21, tuff luck and he/she gets the boot out of the country. I really hope this is not the case for my own selfish reasons (aka my own K2 issue) and, as I've said before there is some District level case law around (California) but the elephant in the room seems to be this issue of age-out on K2 not being approved before he/she hits 21 years of age. Can we get any definitieve answers on this?

I have looked a three cases of K-2s which were denied because they turned 21 during the AOS process that went to Federal court. In all three cases the K-2 AOS was upheld and ruled that if the process began before age 21 they should be adjusted. One case was posted here on this site recently.

I was under the same impression (or conservative assumption also) I cannot say that USCIS has changed any policies, however I am meeting with the director of the VSC again tomorrow(actually later today) and it will be one of the questions I hand over to him (along with a bunch of others) and it will be interesting to see their take on it.

No one wants to go to federal court for this, of course, it is just a whole lot easier to get it approved. It is no doubt BEST at this point to get the AOS completed before age 21. If it is fairly close to the beneficiaries birthday, be sure to write POSSIBLE AGE OUT on the envelope containing their I-485.

It would seem to make sense that if a k-2 visa (non-immigrant/dual purpose visa) is issued until age 21 then they should be able to adjust status, other wise cut the AOS off at age 21 and cut the visa off at 20-1/2 or something. I would hope after being ruled against in three cases, USCIS would get the hint. We will find out for sure.

Hi,

We are in Federal court and removal proceeding. What is the name of these court cases you talking about? Can you send me these cases? thanks, Nataliia

[OlegAndSveta 1]

Sorry, did n't answer the last question

Filinf to adjust staus for the K-2 is virtually identical as for the K-1. It is a separate filing, fees etc. Use the I-485, G-325a and other documents exactly as for the K-1 including affidavit of support, EAD and AP if desired. The feee is $1010 per person UNLESS tha child is under 14 years and files with the parent, the fee is $600 each. Also need to attach copy of the marriage certificate, I-129f approval. Exactly the K-1 adjustment x two.

The K2 WILL be able to adjust status without problems if the marriage occured when she was 20 years old PROVIDED the AOS is filed before her 21st birthday.

A little bit late, but still. Gary and Alla, thank you very much for this information, I been looking for it. Couple more questions: "files with parent", what exactly does it mean? If we are sending papers of mother (my fiancee) and child (her son, 11 years old) together, at one mail package, is it "filing with parent", or is "filing with parent" completely different procedure? Also, you mentioned $600 for child. Did I understand right, that it actually $680, together with biometrics?

[pdxbiker 0]

My step son applied for a K2 adjustment of status in Portland when he was 20. USICS delayed his processing for 7 months and we could not get the adjustment of status interview until 4 weeks after his 21st birthday. The smiling agent for USCIS told us my wife could get a green card (as soon as she could find her file which had been lost) but her only son would have to return to China since it was now past his 21st birthday. We filed a Motion to Reconsider showing quite a few cases where K-2 filing before their 21st birthday were allowed to adjust by courts. However we were denied. Now we are waiting to go before an immigration court. USCIS took my stepson's Chinese passport. They won't provide any documentation to show he is following the rules. He can't maintain a US driver's license. Because he can't have any official picture ID he can't fly on a plane. It is costing me at least $6,000 and it is a cloud hanging over all our heads for the 2 years MINIMUM it takes to be heard by a court. GET IT DONE BEFORE 21!

By the way, calling USICS' 800 number is COMPLETELY USELESS. It is staffed by contract people with very little training and they are only qualified to repeat word for word information from the USCIS website. However on 3 different times they assured us as long as my stepson filed the adjustment of status before 21 he was safe.

[JimVaPhuong 4,863]

My step son applied for a K2 adjustment of status in Portland when he was 20. USICS delayed his processing for 7 months and we could not get the adjustment of status interview until 4 weeks after his 21st birthday. The smiling agent for USCIS told us my wife could get a green card (as soon as she could find her file which had been lost) but her only son would have to return to China since it was now past his 21st birthday. We filed a Motion to Reconsider showing quite a few cases where K-2 filing before their 21st birthday were allowed to adjust by courts. However we were denied. Now we are waiting to go before an immigration court. USCIS took my stepson's Chinese passport. They won't provide any documentation to show he is following the rules. He can't maintain a US driver's license. Because he can't have any official picture ID he can't fly on a plane. It is costing me at least $6,000 and it is a cloud hanging over all our heads for the 2 years MINIMUM it takes to be heard by a court. GET IT DONE BEFORE 21!

By the way, calling USICS' 800 number is COMPLETELY USELESS. It is staffed by contract people with very little training and they are only qualified to repeat word for word information from the USCIS website. However on 3 different times they assured us as long as my stepson filed the adjustment of status before 21 he was safe.

This old thread is going to fall off the front page of this subforum in a day or two, but this story is important for other K2 AOS filers to see. Please post it in the pinned K2 thread in this subforum.

An important lesson everyone should get from this is to never trust a low-level government employee to give accurate answers. If they actually understood immigration law then they'd be immigration officers rather than customer service representatives.

FWIW, I think you'll probably lose in the immigration court, as well. If you appeal to the BIA then I think you'll lose there, as well. I'm aware of some of those court cases you mentioned, and none of them have caused a change in USCIS policy. The AFM is still very clear about this:

An alien in K2 status does not have a visa petition filed on his or her behalf under section 204. Consequently, a K2 alien cannot utilize the CSPA when seeking to adjust status. Although not required, USCIS may accept a Form I-130 filed by the USC petitioner based on a parent-child relationship between the USC petitioner and the K2 alien (e.g. where the USC petitioner has married the K1 and K2 is not yet 18 years old). This will allow an alien who once was a K2 to adjust on the basis of a petition filed und er section 204 of the Act and will allow him/her to utilize the CSPA when seeking to adjust status in some cases.

Exercising this option requires: (1) an existing parent-child relationship between the USC petitioner and the K2 alien, and (2) paying the requisite fees associated with Forms I-130 and I-485, Application To Register Permanent Residence or Adjust Status. This guidance does not create a petitionable relationship for K2s or K4s where none exists.

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm

A K2 can only get CSPA protection if they adjust status based on an immediate relative petition rather than as a K2 derivative. They can only adjust status based on an immediate relative petition if their parent married the US citizen before they were 18.

I think the only way you're going to win your case is if you get a judgment in a venue that isn't bound by USCIS policy, and has the leeway to consider the intent of the law. This means you'll probably have to sue in a federal court.