Calling all K-2 AOSers - past and present

[carla1 4]

Thank you so much for starting this forum!!!!!!!!

I will be bringing over my fiancee this spring and he will be coming with his 18 year old son. (I am really looking forward to having a family!)

If I understand everything right, my then husband will have to wait and sponsor his son as the marriage will take place when the son is already 18. We will file the AOS for my husband right away, approximately how long before we can file the AOS for the son? He turns 19 in June so I am worried about the time running out. Given his nature he is definitely going to want to work, will he have to wait for the EAD? Or can that be filed earlier?

[JimVaPhuong 4,863]

Thank you so much for starting this forum!!!!!!!!

I will be bringing over my fiancee this spring and he will be coming with his 18 year old son. (I am really looking forward to having a family!)

If I understand everything right, my then husband will have to wait and sponsor his son as the marriage will take place when the son is already 18. We will file the AOS for my husband right away, approximately how long before we can file the AOS for the son? He turns 19 in June so I am worried about the time running out. Given his nature he is definitely going to want to work, will he have to wait for the EAD? Or can that be filed earlier?

If his son is coming with a K2 visa then he's eligible to adjust status. His father doesn't have to "sponsor" him for anything. You will have to provide affidavits of support for both of them. His son can submit his AOS application at the same time his father submits his, or anytime after, but he can't submit it before his father submits his. His son must complete adjustment of status and be approved before he is 21 years old.

[SunDrop 59]

If his son is coming with a K2 visa then he's eligible to adjust status. His father doesn't have to "sponsor" him for anything. You will have to provide affidavits of support for both of them. His son can submit his AOS application at the same time his father submits his, or anytime after, but he can't submit it before his father submits his. His son must complete adjustment of status and be approved before he is 21 years old.

Just out of curiosity, what happens with older children and ROC? Can they continue residing in the US indefinitely as long as they ROC or apply for citizenship (after 5 years presence), despite being over 21?

He can apply for an EAD before filing the AOS, but it'll be restricted to the date on his I-94 (90 days from POE date) and takes about 2-3 months to process. It also costs $350 ish to file by itself. So logically, unless he's landing a very high paying job, he's going to get at best 4 weeks work and it's not cost efficient.

Or you can marry and AOS straight after arriving, and it is included in the overall AOS fee and still takes 2-3 months. Except the validity is longer so you can continue working even if there is a delay to the AOS/ GC issuance.

Edit: Clarity

Edited February 11, 2011 by SunDrop

[Nadiia and Eric 1]

I have to look into it a little bit deeper and try to find a good response about over the age of 21 (by USCIS a person is consider a child to the age of 21), but it appears as long as the child has filed with the parent within 90 days of parents adjustment an at at least 90 days before that persons 21 birthday, then the process has already started as a child and will continue until approved or denied (not because of age). I hope to find a answer today and that I can show it comes from a good source or maybe soeone will already have the answer. Appears a lot of us prefer to find answers to help all theses K-2 AOS's

[Nadiia and Eric 1]

Hey Sundrop. I still need to find out how to setup a link so I can add AOS'ers past and present if you can explain here or by email would appreciate very much.

[Nadiia and Eric 1]

Considering how long it takes for USCIS to approve different petitions this would apply and would allow the person to go over the age of 21 as long as petitions were already filed before the person is 21

Questions and Answers: USCIS Issues Revised Guidance on the Applicability of the Child Status Protection Act (CSPA)

Introduction

The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.

Since its enactment on Aug. 6, 2002, USCIS provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA. A memo issued April 30, 2008 made some substantive changes to how USCIS applies CSPA.

Questions & Answers

Q: What is the Child Status Protection Act (CSPA)?

A. A “child” is defined in the Act as an unmarried person under the age of 21. Prior to the enactment of the CSPA on August 6, 2002, anyone who turned 21 at any point prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many people were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect an individual’s immigration classification as a child when the person aged out due to excessive processing times.

Q. How does CSPA work?

If you are…

Immediate Relative of a Naturalized U.S. Citize Preference Classification for Permanent Residence or Derivative

The child’s age freezes at time the visa petition is filed (Form I-130). If a child becomes an immediate relative through the petitioner’s naturalization or the termination of the beneficiary’s marriage while the beneficiary is under 21, the child’s age freezes on the date such action occurred. CSPA allows the time a visa petition was pending to be subtracted from an applicant for permanent residence’s biological age so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

[JimVaPhuong 4,863]

Just out of curiosity, what happens with older children and ROC? Can they continue residing in the US indefinitely as long as they ROC or apply for citizenship (after 5 years presence), despite being over 21?

Yes. Once they adjust status they are just like any other LPR. If the K1 parent's green card was conditional then the K2's green card will also be conditional. If the K1's ROC is denied then the K2's ROC is also automatically denied. If the K1's ROC is approved then the K2's will be approved UNLESS the K2 has become removable for some reason. The K2 can apply for citizenship after five years continuous residence. The age of the K2 becomes irrelevant after they've adjusted status.

Considering how long it takes for USCIS to approve different petitions this would apply and would allow the person to go over the age of 21 as long as petitions were already filed before the person is 21

Questions and Answers: USCIS Issues Revised Guidance on the Applicability of the Child Status Protection Act (CSPA)

(snip...)

In order to be covered by the CSPA the parent/step-child relationship must be established before the child turns 18 years of age. In most cases where a K2 child's parent would have married the US citizen petitioner before the child was 18, they would complete adjustment of status long before they were 21 years old.

The K2 is unique in this respect - a child over the age of 18 and under the age of 21 is eligible for a K2 derivative visa. A similar child would not be eligible for an IR2 visa unless his parent married the US citizen before they were 18 years old. A K2 child whose parent marries a US citizen after they are 18 years old is NOT protected by the CSPA. If their adjustment of status is not approved before they are 21 years old then they become ineligible.

[Nadiia and Eric 1]

Thank you Jim was not quite sure. Also I saw in a other topic about K-2 AOS for 12 year old, I know for a child they are listed on the mothers I-485 and a copy of this could be put with AOS for son. Now I was also thinking that the G-325A would be filled out by K-1 and a seperate one for the K-2 (since the childs mother and father would have to be shown) maybe wrong here, but at least I will know shortly after you see this. Someone stated if under 14 a G-325A is not needed. Like I said to clerify this I need your help to give the correct information. It is such a shame how much difference there is for K-2's considering age, of course my stepson is 17. Would you put none in the SSN block or leave blank (I left blank because I knew they would put it in).

[JimVaPhuong 4,863]

Thank you Jim was not quite sure. Also I saw in a other topic about K-2 AOS for 12 year old, I know for a child they are listed on the mothers I-485 and a copy of this could be put with AOS for son. Now I was also thinking that the G-325A would be filled out by K-1 and a seperate one for the K-2 (since the childs mother and father would have to be shown) maybe wrong here, but at least I will know shortly after you see this. Someone stated if under 14 a G-325A is not needed. Like I said to clerify this I need your help to give the correct information. It is such a shame how much difference there is for K-2's considering age, of course my stepson is 17. Would you put none in the SSN block or leave blank (I left blank because I knew they would put it in).

A K2 generally needs to submit the same AOS paperwork as the K1. The one exception I know of is that the K2 doesn't need to submit an I-864 if the K2 is ALSO listed on the K1's I-864. In that case, you include a copy of the K1's I-864 with the K2's package. I've never heard that a G-325A is not required for a K2 under the age of 14. I would include it anyway.

There were several instances where I thought that neither "none" nor "n/a" was appropriate. In those cases I simply drew a line through the box. This indicated that I didn't simply forget to write something there, but that I had no information to provide. It wasn't a problem.

The situation for a K2 is not a shame. It's actually really great. Allow me to explain.

A step-child of a US citizen has always been eligible for a derivative visa if the parent/step-child relationship (i.e., marriage of the child's parent to the US citizen) was established before the child was 18. The child was eligible to adjust status until it was 21.

The K1/K2 created a problem. The child would be eligible to adjust status until it was 21 years old, but it couldn't get a derivative visa unless it's parent married the US citizen before it was 18. However, the K1 gets a visa BEFORE marrying the US citizen. This almost implied that the K1 had to get their visa first, come to the US, and marry the US citizen before the child was 18 in order for the child to be eligible for a derivative visa. If this requirement was enforced then ALL K2's would be follow-to-join because no parent/step-child relationship can exist until the child's parent marries the US citizen. Obviously, this isn't practical, nor is it fair. The solution they came up with was to essentially ignore the requirement that the parent/step-child relationship be established before the child was 18, and allow the child to be eligible for a derivative visa as long as the child was also eligible to adjust status. The CSPA did not make the same exception. In order to be covered by the CSPA the parent/step-child relationship must still be established before the child is 18.

If I had married my wife and applied for a CR1 then only one of my step-kids would have been eligible for a derivative visa. The other was already 19 years old. Since I went with the K1, both of them were eligible and both of them received K2's.

[ashwood486 0]

Hello,

I am not sure if this will help but, I included my then fiance's son (7 yrs) on the original I-129F and he was part of the whole process from the medicals at the embassy to the biometrics in the states for the AOS.

The whole time his and her paperwork came together or with in a few days of each other in the mail. They set all the appointments together and his Greencard arrived before hers. I have been shocked we never recieved any RFE's. I was more amazed about the I693 form. I never included this in any application for the AOS and the interviewer never asked us for a copy. We had them available. I only wished we didn't have to waste this money for a doctor to spend 15 minutes on the paperwork and charge us $300.00. I have several opinins about the ESL programs in the schools. I think the Rosetta programs have helped my step son adapt and understand English very well. I helps if they are around other kids who speak English. We started him in soccer and he has been great after about a 3 month adjustment period. The first 3 months he misbehaved and seemed to have alot of stress adjusting to the changes. When soccer and school started he has been great. Hope this helps someone.

[Nadiia and Eric 1]

Jim, I did not mean it in a bad way about the saying its a shame what I meant by is the fact that there are to many different processes for K-2 they should all be done the same way example older then 14 is one way while under 14 is another, they should be equal to make everyone's life easier . It's actually really great.

[Nadiia and Eric 1]

Hello,

I am not sure if this will help but, I included my then fiance's son (7 yrs) on the original I-129F and he was part of the whole process from the medicals at the embassy to the biometrics in the states for the AOS.

The whole time his and her paperwork came together or with in a few days of each other in the mail. They set all the appointments together and his Greencard arrived before hers. I have been shocked we never recieved any RFE's. I was more amazed about the I693 form. I never included this in any application for the AOS and the interviewer never asked us for a copy. We had them available. I only wished we didn't have to waste this money for a doctor to spend 15 minutes on the paperwork and charge us $300.00. I have several opinins about the ESL programs in the schools. I think the Rosetta programs have helped my step son adapt and understand English very well. I helps if they are around other kids who speak English. We started him in soccer and he has been great after about a 3 month adjustment period. The first 3 months he misbehaved and seemed to have alot of stress adjusting to the changes. When soccer and school started he has been great. Hope this helps someone.

I had my son in ESL classes at a community college and it did help him a lot, while he was going through these classes we made arrangements for him to also take the TOEFL test, which he scored well enough that we were able to get him into Missouri State University and he is doing well there. I was also very lucky that when we had The I-693 done for each of them immunization only was $50 for each of them. I was also very lucky that we never received RFE's starting from the beginning. We are waiting on their Conditional Green Cards and I am already starting to save things for the next step for 10 year GC ex: anything that I may sign my name to (medical, I will open a checking account with him when he turns 18 (joint).

[Nadiia and Eric 1]

Well finally completed the K-2 journey next will be lifting of conditions made it through without a RFE what were the chances. I will check in here on a regular basis this is a GREAT Topic. Thanks for the ones that had helped me through the K-2 also.

[REINITA♥REY 8]

Well finally completed the K-2 journey next will be lifting of conditions made it through without a RFE what were the chances. I will check in here on a regular basis this is a GREAT Topic. Thanks for the ones that had helped me through the K-2 also.

Awesome news! Congrats

[SunDrop 59]

Congrats!!

Sorry didn't get caught up with this thread until just now, school's got kinda hectic! lol

Not sure what you mean about adding links to past and present AOSers? Let me know what you'd like to do and I'll help any way I can.

Jim, under 14s don't do full biometrics. My 11 year old did have her photo taken and her index fingerprints taken, and they were included on her EAD card that just turned up Saturday. When I get a moment, I'll try and find which set of instructions supports this information.

+1 for the I-864. Photocopy of the signed form and no need to copy supporting information (paystubs, etc.) as long as it's filed alongside the parent's AOS forms.