Older K2 a problem for K1 approval?

[Sisyphus 1]

In a recent topic I related info about my K1/2 situation. We do have some red flags, so I contacted a popular immigration attorney.

I sent an email relating our relationship timeline. When I talked to the atty, (I think it's best not to mention his name) he recognized the red flag issues, recommended we marry in China and persue a CR1 visa. Apparently he had not read my email. When I mentioned our issue of my fiancee's son (K2) being 19yo he made this comment -The Guangzhou consulate routinely denies K1 visas that have a K2 with age-out potential, they have been doing that for years- This news is significantly discouraging for us, it seems there is little hope for a K1/2 based on this alone. One strategy recommended is that we wait for one year to file for K1, however that strategy leaves the young man without a derivative visa/path to GC. So we were considering a more limited wait, 6 mos maybe, then going forward. Of course this would cut it close on the K/2 AOS before 21yo. We have also considered a K1 without her son, then she can file I130 for him when she gets her GC.

So I guess I'm looking for some feedback on the atty view that K1/2 are usually denied because of the older K2.

Anyone go through the Guangzhou consulate for a K1/2, with a 19yo or older K2, in the last few years or so?

What was the result?

Please don't move to the China forum.

Edited November 11, 2010 by Sisyphus

[pushbrk 13,167]

In a recent topic I related info about my K1/2 situation. We do have some red flags, so I contacted a popular immigration attorney.

I sent an email relating our relationship timeline. When I talked to the atty, (I think it's best not to mention his name) he recognized the red flag issues, recommended we marry in China and persue a CR1 visa. Apparently he had not read my email. When I mentioned our issue of my fiancee's son (K2) being 19yo he made this comment -The Guangzhou consulate routinely denies K1 visas that have a K2 with age-out potential, they have been doing that for years- This news is significantly discouraging for us, it seems there is little hope for a K1/2 based on this alone. One strategy recommended is that we wait for one year to file for K1, however that strategy leaves the young man without a derivative visa/path to GC. So we were considering a more limited wait, 6 mos maybe, then going forward. Of course this would cut it close on the K/2 AOS before 21yo. We have also considered a K1 without her son, then she can file I130 for him when she gets her GC.

So I guess I'm looking for some feedback on the atty view that K1/2 are usually denied because of the older K2.

Anyone go through the Guangzhou consulate for a K1/2, with a 19yo or older K2, in the last few years or so?

What was the result?

Please don't move to the China forum.

File the I-129F now. The stepchild is not eligible for a CR2 visa if the marriage takes place after they turn 18. THIS attorney gave you VERY bad advice. While it may be true that Guangzhou denies K2 visas in similar circumstances to those you describe (News to me) USCIS will deny an I-130 petition for a stepchild when the marriage takes place after age 18, so CR2 is out of the question entirely.

Her filing for him after she gets her green card could take a very long time and he MUST remain unmarried.

Edited November 12, 2010 by pushbrk

[Sisyphus 1]

File the I-129F now. The stepchild is not eligible for a CR2 visa if the marriage takes place after they turn 18. THIS attorney gave you VERY bad advice. While it may be true that Guangzhou denies K2 visas in similar circumstances to those you describe (News to me) USCIS will deny an I-130 petition for a stepchild when the marriage takes place after age 18, so CR2 is out of the question entirely.

Her filing for him after she gets her green card could take a very long time and he MUST remain unmarried.

Thanks Pushbrk. However according to the visa bulletin the wait for a F2A to come current is only five months now. So with CSPA its doable for my fiance to file the I130 for a CR2 as a LPR after she gets a K1, we get married, she AOS, gets a GC. I know he wouldn't qualify as my step-son since he's over 18, his mom would need to file as LPR. Am I missing something here?

The timeline looks like this to me: Sep 2011 K1; get married quickly; 4 months for AOS; file I130 for the son in Feb 2012; with CSPA using the CSPA calculator and all the current processing times etc it works. His 21 bday is June 1, 2012.

I know this is risky, we are depending on the F2A wait and processing times to hold. We want to do the K1/2 but if it means no K1 (in all probability) we would risk it. We have other redflag issues to overcome as well. This attorney is the #1 recommended for GUZ and HCMC so... lets not mention names, suffice to say: he is who you think he is.

So I'm trying to get an idea of how big a factor the older K2 really is.

Edited November 12, 2010 by Sisyphus

[JimVaPhuong 4,863]

Thanks Pushbrk. However according to the visa bulletin the wait for a F2A to come current is only five months now. So with CSPA its doable for my fiance to file the I130 for a CR2 as a LPR after she gets a K1, we get married, she AOS, gets a GC. I know he wouldn't qualify as my step-son since he's over 18, his mom would need to file as LPR. Am I missing something here?

Yes. You're missing the fact that an LPR cannot file a petition for an immediate relative (CR and IR visas). Only a US citizen can do that. Your wife, after becoming an LPR, would file a family based visa petition; an FB2A if he's still under 21, or an FB2B if he's 21 or over and unmarried. It's still the same form - the I-130 - just a different class of visa. FB2A's from China are currently about 5 months. FB2B's from China are currently about 5 years.

The timeline looks like this to me: Sep 2011 K1; get married quickly; 4 months for AOS; file I130 for the son in Feb 2012; with CSPA using the CSPA calculator and all the current processing times etc it works. His 21 bday is June 1, 2012.

I know this is risky, we are depending on the F2A wait and processing times to hold. We want to do the K1/2 but if it means no K1 (in all probability) we would risk it. We have other redflag issues to overcome as well. This attorney is the #1 recommended for GUZ and HCMC so... lets not mention names, suffice to say: he is who you think he is.

So I'm trying to get an idea of how big a factor the older K2 really is.

One problem. CSPA does not protect someone who ages out while waiting for a visa number. A visa number is available when his priority date becomes current. Add five months to the I-130 filing date for his priority number to become current, according to the current visa bulletin, and he's aged out.

You have nothing whatever to lose by filing a K1. Yes, Guz might deny the visa, which would leave you in the same situation you're currently in.

Your wife can become a US citizen three years after she becomes an LPR. Her I-130 can then be changed to an FB1, which would knock about 8 months off the wait time. There's also a good chance that the wait time will decrease on it's own, as it has been for the past couple of years. People are submitting fewer family based visa petitions, which is cutting the backlog.

Edited November 12, 2010 by JimVaPhuong

[Sisyphus 1]

Yes. You're missing the fact that an LPR cannot file a petition for an immediate relative (CR and IR visas). Only a US citizen can do that. Your wife, after becoming an LPR, would file a family based visa petition; an FB2A if he's still under 21, or an FB2B if he's 21 or over and unmarried. It's still the same form - the I-130 - just a different class of visa. FB2A's from China are currently about 5 months. FB2B's from China are currently about 5 years.

One problem. CSPA does not protect someone who ages out while waiting for a visa number. A visa number is available when his priority date becomes current. Add five months to the I-130 filing date for his priority number to become current, according to the current visa bulletin, and he's aged out.

You have nothing whatever to lose by filing a K1. Yes, Guz might deny the visa, which would leave you in the same situation you're currently in.

Your wife can become a US citizen three years after she becomes an LPR. Her I-130 can then be changed to an FB1, which would knock about 8 months off the wait time. There's also a good chance that the wait time will decrease on it's own, as it has been for the past couple of years. People are submitting fewer family based visa petitions, which is cutting the backlog.

Thanks Jim, I see the visa would be a FB2A (akaF2A) not IR/CR. However I don't understand why you say that CSPA wont protect him from age out. According to the CSPA calculator you deduct the USCIS processing time from the availability date. So if the USCIS time is 4-5 mos, viola he's under 21 again. I thought that CSPA is specifically to protect a child from aging out while the petition is in process? I know CSPA wouldn't protect him if the availability date gets out a ways further, but with the USCIS processing time close to the wait time for availibity, it works.

So I think we do have something to lose if we file K1 now and its denied. We lose the window of opportunity to do K1 and have her file the I130 for her son as a fresh LPR and use CSPA to avoid age out. We also have to start over on the whole visa process, so we are apart 6-8 months longer.

Hence my question: Anyone go through the Guangzhou consulate for a K1/2, with a 19yo or older K2, in the last few years or so?

What was the result?

Attached is a b/w .bmp of the CSPA calc check it out...

nicoxls..bmp

[Gary and Alla 3,694]

File the I-129F now. The stepchild is not eligible for a CR2 visa if the marriage takes place after they turn 18. THIS attorney gave you VERY bad advice. While it may be true that Guangzhou denies K2 visas in similar circumstances to those you describe (News to me) USCIS will deny an I-130 petition for a stepchild when the marriage takes place after age 18, so CR2 is out of the question entirely.

Her filing for him after she gets her green card could take a very long time and he MUST remain unmarried.

Same attorney that says to do your own background check?

Age 19 is in no danger of age out for a K-2. Age 19 is already too old to qualify for a CR-2 as you would have to marry his mother BEFORE he turned age 18 for this to apply.

File an I-129F NOW and list this child on the petition (list ALL children on the petition, whether they will come or not)

[Sisyphus 1]

Gary, Yes same atty. The son would be over 20 at the time of the interview. Any dif?

Edited November 12, 2010 by Sisyphus

[Gary and Alla 3,694]

Gary, Yes same atty. The son would be over 20 at the time of the interview. Any dif?

No.

He is eligible to file for AOS until age 21. I have recently helpoed with two cases where the child was BARELY under 21 when they arrived. One filed the AOS less than one week before his 21st birthday and arrived only two days before that (K-2 to follow). He has already been approved for his green card. Another was a few months under age 21. Same result. They are not from China, but that makes no difference to USCIS who does the AOS anyway. The I-485 must be filed before his 21st birthday. You MUST marry his mother and file for her AOS at the same time or before his. In other words, do not delay the wedding for a particular DJ for the reception...ok? She arrives, you get married, you file the AOS for both...toute suite! Get the papers ready ahead of time.

When you file for his AOS, write a letter requesting an expedite on the basis he is subject to age out. Also write "possible age out" on the outside of the envelope.

File the I-129f, let the Chinese consulate do what they will. If they deny it, they deny it...go to plan B. I seriously doubt they would deny it if he is under age 21, but I cannot comment on that specifically. As they say "do not tale points off the board". Go for it. From what you say here, the K-2 is your best possibility. I see NO WAY your fiancee will arrive, get married, and adjust status (have it complete) before his 21st birthday which throws you into the "more than 5 year wait" category. Go for it now and hope for the best.

The advantage of the K-2 is that his AOS does not need to be COMPLETE before his 21st birthday, only filed for before the 21st birthday.

[Sisyphus 1]

Gary, It's good to here you have some sucessful experience with K2's AOS approval after they're 21. Others have related the opposite. Take a look here: http://www.chinafamilyvisa.com/forum/index.php?showtopic=69 RandyW had a bad expereience with this.

A while ago I had the impression it was OK, as long as the AOS filing was prior to 21, but I saw this and now I see that it is inconsistent whether it is allowed or not.

The UCICS site says no CSPA 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.

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

I just wish I could be sure one way or another. But ia all seems "clear as mud".

Edited November 12, 2010 by Sisyphus

[JimVaPhuong 4,863]

Thanks Jim, I see the visa would be a FB2A (akaF2A) not IR/CR. However I don't understand why you say that CSPA wont protect him from age out. According to the CSPA calculator you deduct the USCIS processing time from the availability date. So if the USCIS time is 4-5 mos, viola he's under 21 again. I thought that CSPA is specifically to protect a child from aging out while the petition is in process? I know CSPA wouldn't protect him if the availability date gets out a ways further, but with the USCIS processing time close to the wait time for availibity, it works.

So I think we do have something to lose if we file K1 now and its denied. We lose the window of opportunity to do K1 and have her file the I130 for her son as a fresh LPR and use CSPA to avoid age out. We also have to start over on the whole visa process, so we are apart 6-8 months longer.

Hence my question: Anyone go through the Guangzhou consulate for a K1/2, with a 19yo or older K2, in the last few years or so?

What was the result?

Attached is a b/w .bmp of the CSPA calc check it out...

Waiting for the priority date to become current is not USCIS processing time. It has nothing to do with delays at USCIS, and everything to do with statutory limits on the number of visas in each category that are available each year. What you may deduct is the time between when the petition was accepted and the time it was approved. You may not deduct the time waiting for the priority date to become current. It goes like this:

(date visa number became available - birthdate) - (date petition was approved - date petition was accepted)

If the result is under 21 years then the beneficiary has not aged out, and has one year to pursue a visa.

As far as K2's aging out, the law does currently require that their adjustment of status be approved before they are 21 years old. However, because of a case which is currently making it's way through the courts (google "re Qiyu Zhang"), and an amicus brief filed by the AILA in behalf of the petitioner in that case (see http://www.aila.org/content/default.aspx?docid=30587) some USCIS offices have been using their discretion to grant adjustment of status when the petition is accepted before the K2 has reached 21 years. I wouldn't hang my hat on this unless it results in an actual policy change with USCIS, though.

[Gary and Alla 3,694]

Waiting for the priority date to become current is not USCIS processing time. It has nothing to do with delays at USCIS, and everything to do with statutory limits on the number of visas in each category that are available each year. What you may deduct is the time between when the petition was accepted and the time it was approved. You may not deduct the time waiting for the priority date to become current. It goes like this:

(date visa number became available - birthdate) - (date petition was approved - date petition was accepted)

If the result is under 21 years then the beneficiary has not aged out, and has one year to pursue a visa.

As far as K2's aging out, the law does currently require that their adjustment of status be approved before they are 21 years old. However, because of a case which is currently making it's way through the courts (google "re Qiyu Zhang"), and an amicus brief filed by the AILA in behalf of the petitioner in that case (see http://www.aila.org/content/default.aspx?docid=30587) some USCIS offices have been using their discretion to grant adjustment of status when the petition is accepted before the K2 has reached 21 years. I wouldn't hang my hat on this unless it results in an actual policy change with USCIS, though.

Both cases I am familiar with went through the CSC. As I understand there is no particular, specific requirement that the AOS be completed by the age of 21. Hence the problem. It is true that in the past USCIS had taken the position that was the case. It has not been the case (though not officially) for more than a year. (I discussed this exact subject in particular with a USCIS director more than a year ago and his answer was "get it filed before they turn 21")

At any rate, the OP has little choice given the age of the child but to pursue a K-2. Whether the Chinese consulate will issue the visa and what, exactly, they consider close to "age out", who knows? But plan B should definitely be plan B. I have not heard of any consulate refusing to approve visas on the speculation that the beneficiary "could possibly" age out. Seems preposterous actually. Why? ANY K-2 could "age out" if the AOS was not filed on a atimely basis and there is no requirement to file the AOS in any particular time period. It just makes no sense. Who are the consulates to second guess what the beneficiary will do and how long it will take USCIS to process?

[payxibka 10,047]

In a recent topic I related info about my K1/2 situation. We do have some red flags, so I contacted a popular immigration attorney.

I sent an email relating our relationship timeline. When I talked to the atty, (I think it's best not to mention his name) he recognized the red flag issues, recommended we marry in China and persue a CR1 visa. Apparently he had not read my email. When I mentioned our issue of my fiancee's son (K2) being 19yo he made this comment -The Guangzhou consulate routinely denies K1 visas that have a K2 with age-out potential, they have been doing that for years- This news is significantly discouraging for us, it seems there is little hope for a K1/2 based on this alone. One strategy recommended is that we wait for one year to file for K1, however that strategy leaves the young man without a derivative visa/path to GC. So we were considering a more limited wait, 6 mos maybe, then going forward. Of course this would cut it close on the K/2 AOS before 21yo. We have also considered a K1 without her son, then she can file I130 for him when she gets her GC.

So I guess I'm looking for some feedback on the atty view that K1/2 are usually denied because of the older K2.

Anyone go through the Guangzhou consulate for a K1/2, with a 19yo or older K2, in the last few years or so?

What was the result?

Please don't move to the China forum.

A K-2 receives automatic approval once the K-1 is approved. I am surprised that Guangzhou is reportedly doing this.

[Tong Yan 2]

My son was 20 years old then and he got approved when they approved mine as a K1. Hope this help.

[Sisyphus 1]

Waiting for the priority date to become current is not USCIS processing time. It has nothing to do with delays at USCIS, and everything to do with statutory limits on the number of visas in each category that are available each year. What you may deduct is the time between when the petition was accepted and the time it was approved. You may not deduct the time waiting for the priority date to become current. It goes like this:

(date visa number became available - birthdate) - (date petition was approved - date petition was accepted)

If the result is under 21 years then the beneficiary has not aged out, and has one year to pursue a visa.

As far as K2's aging out, the law does currently require that their adjustment of status be approved before they are 21 years old. However, because of a case which is currently making it's way through the courts (google "re Qiyu Zhang"), and an amicus brief filed by the AILA in behalf of the petitioner in that case (see http://www.aila.org/content/default.aspx?docid=30587) some USCIS offices have been using their discretion to grant adjustment of status when the petition is accepted before the K2 has reached 21 years. I wouldn't hang my hat on this unless it results in an actual policy change with USCIS, though.

Thanks for the clarifications. The CSPA calc is the same as I used.

I have reviewed this lawsuit, and the Reuniting American Families act (inactive). It would sure be nice if there was a clear USCIS policy re:K2 > 21 @ AOS approval. It looks like while this is pending in the courts, it is a jurisdictional discretion issue. It seems impossible to predict how a particular case will be decided.

[Sisyphus 1]

Both cases I am familiar with went through the CSC. As I understand there is no particular, specific requirement that the AOS be completed by the age of 21. Hence the problem. It is true that in the past USCIS had taken the position that was the case. It has not been the case (though not officially) for more than a year. (I discussed this exact subject in particular with a USCIS director more than a year ago and his answer was "get it filed before they turn 21")

At any rate, the OP has little choice given the age of the child but to pursue a K-2. Whether the Chinese consulate will issue the visa and what, exactly, they consider close to "age out", who knows? But plan B should definitely be plan B. I have not heard of any consulate refusing to approve visas on the speculation that the beneficiary "could possibly" age out. Seems preposterous actually. Why? ANY K-2 could "age out" if the AOS was not filed on a atimely basis and there is no requirement to file the AOS in any particular time period. It just makes no sense. Who are the consulates to second guess what the beneficiary will do and how long it will take USCIS to process?

Thanks Gary. Yes I think this is a jurisdictional matter. I believe there is some court precedence in the Ninth Circuit to allow >21 AOS approval. So it could work out since I am in that dist. But I'm not up for a court battle, been to that horror show, never again. The I485 would be sent to the Chicago lockbox. Technically however, the Nebraska service center would handle the AOS, as far as I can tell, for an app originating in WA state.

The word I got was that the consulate does not cite the older K2 as the basis for denial, they use something else for the basis. Usually the "failure to show a bonafide relationship" catch-all. Yes it seems preposterous, but from what I can see it would be in character for GUZ. Hence the concern, this topic, and this question:

Anyone go through the Guangzhou consulate for a K1/2, with a 19yo or older K2, in the last few years or so?

What was the result?

Edited November 12, 2010 by Sisyphus