K-2, AOS, CSPA any changes?

[Sisyphus 1]

I'm probably just confused from reading the gov't sites, but... has anything changed recently re:K-2, AOS and CSPA?

My fiancee's son is now 19 I'm working on the I129f, but I assume he will be close to 20 when they get to the US, we get married , and file for AOS, if all goes OK. I was convinced that he could file for AOS before he is 21 and be protected by CSPA if the AOS was not final by the time he's 21. Am I wrong?

I saw all this through the DOS link in the Captain Ewok General K-1 giudes and info

The UCICS site says no CSAP protection for K-2:

Limited CSPA Coverage for K-2s

An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday.

Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

Also the DOS site seems to be saying that the stepchild relationship needs to occur before 18yo to in order to file AOS:

Important Notice: Under U.S. immigration law, a child must be unmarried. In order to file for adjustment of status for your child following your marriage to your U.S. citizen spouse, the child’s stepchild relationship with your spouse must be created before the child reaches the age of 18.

http://travel.state.gov/visa/immigrants/types/types_2994.html#18

What's up with all this? Has anything changed? It certainly seems contrary to everything I read here on VJ. Have these sites always been saying this, when in actuality it is still allowed to AOS under my circumstances with CSPA protection? Please just tell me I'm confused...

[Used to be broken 147]

I'm probably just confused from reading the gov't sites, but... has anything changed recently re:K-2, AOS and CSPA?

My fiancee's son is now 19 I'm working on the I129f, but I assume he will be close to 20 when they get to the US, we get married , and file for AOS, if all goes OK. I was convinced that he could file for AOS before he is 21 and be protected by CSPA if the AOS was not final by the time he's 21. Am I wrong?

I saw all this through the DOS link in the Captain Ewok General K-1 giudes and info

The UCICS site says no CSAP protection for K-2:

Limited CSPA Coverage for K-2s

An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday.

Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

Also the DOS site seems to be saying that the stepchild relationship needs to occur before 18yo to in order to file AOS:

Important Notice: Under U.S. immigration law, a child must be unmarried. In order to file for adjustment of status for your child following your marriage to your U.S. citizen spouse, the child’s stepchild relationship with your spouse must be created before the child reaches the age of 18.

http://travel.state.gov/visa/immigrants/types/types_2994.html#18

What's up with all this? Has anything changed? It certainly seems contrary to everything I read here on VJ. Have these sites always been saying this, when in actuality it is still allowed to AOS under my circumstances with CSPA protection? Please just tell me I'm confused...

I have seen a little problem with K2's and know someone who had a son that went into proceedings because the government took so long to process the security checks etc. I have seen something about a "class action" on these cases and in different circuits there have been different rulings.

www.americanfamiliesunited.com is an organization that has this as one of the issues they advocate around.

Here is a link to information on the class action..

http://www.asistahelp.org/documents/resources/AIC_on_CSPA_9AC9012CA0AD2.pdf

[Used to be broken 147]

I have seen a little problem with K2's and know someone who had a son that went into proceedings because the government took so long to process the security checks etc. I have seen something about a "class action" on these cases and in different circuits there have been different rulings.

www.americanfamiliesunited.com is an organization that has this as one of the issues they advocate around.

Here is a BETTER link to information on the class action..

http://shusterman.com/pdf/cspaopeningbrief9thcircuit.pdf

[Darnell 8,478]

We've got some detail on 'aging out' over at http://www.chinafamilyvisa.com/forum/index.php?showtopic=69&view=findpost&p=13903

Might want to review that, soonish.

Also check in with http://www.americanfamiliesunited.org/ for any current status of prior and pending legislation, as they'd know for certain IF the The Reuniting Families Act of 2009 made it out of committee for a vote, or no.

Edited October 6, 2010 by Darnell

[Sisyphus 1]

Darnell, Thanks for the tip. China Family Visa Forums turned out to be a good resource.

[Darnell 8,478]

Yup - my apologies if the link seemed/got munged, though -

I was trying to hotlink you to the exact post on 'age-ing out'

So - now ya know -

Calender is important, here.... IMO, so important, it trumps any 'work' situation for waiting to file.