Now she wants to bring a child!

[Gary and Alla 3,694]

First, no parental approval was needed for a child over 18 in China. Second, he can get a medical and apply for the K2 with his mother but unless he both arrives in the USA AND completes his status adjustment before his 21st birthday, he will need to leave. Is there time to get the visa, come to the USA, file for AOS, plus three months? You can ask for an expedite in an age-out situation but the marriage must occur in the USA first.

Unless he can AT LEAST file for the AOS before age 21 it will not make any difference to bring him. Best if it is approved before his 21st birthday.

[Gary and Alla 3,694]

OK we seem to have a conflict in advice here. Darnel's answer seems to be the closest to what uscis.org told me on the telephone. They said that I need to send my fiance to Guangzhou along with her son, about a 3 hour bus ride, along with his civil documents so that the consulate can talk to him and then see if there is a visa available for him. Then they tell me that I need to call the Guangzhou consulate to verify what they told me. The only phone number I have from website in a recorded information line only. My only option is to email which I have already done but they have not answered me. My fiance's son works full time and his boss told him that he would fire him if he went to Guangzhou. So before I take any advice and get him fired I need to be sure what is factual and what is not. So please understand why I would ask you to backup what you are saying.

Can you help a guy out here? Do either of you have experience with this?

Brought two children myself and helped many others including some with age out problems. Here is the deal as it stands in practice right now.

IF GUZ will issue the visa (they can decide on this and there is no one to tell them otherwise) and he arrives AND files AOS (which means you have to be married and your wife has to file at the same time or before him) before his 21st birthday and has an NOA1 for the AOS dated before his 21st birthday, the only way he can be removed from the US is by deportation. It is very unlikely he would actually be deported. You could be in for some expensive lawyer fees and perhaps several years of challenges, but as long as he STAYS in the US there is not much they can do. He entered legally and filed for AOS legally. He most likely would be approved eventually.

Pushbrk has more knowledge of the GUZ consulate and I will defer to him on whether they will even issue the visa. Were it me and I wanted this, I would apply and let the consulate decide.

[Darnell 8,478]

Then would it be better for me to contact them or to send her and her son to Guangzhou with his information so that they can fill out the P-3 there?

better now to send in, via postal mail, a p3 kit on the son, to guz iv, also email guZ iv about the change. do not fill out p3 at cons, send it in nowish, with a cover letter tying it to the mother'S guz casefile #

[pushbrk 12,883]

better now to send in, via postal mail, a p3 kit on the son, to guz iv, also email guZ iv about the change. do not fill out p3 at cons, send it in nowish, with a cover letter tying it to the mother'S guz casefile #

Agreed. That will save time and I expect they will accept it just fine. Still their call on issuing the visa but you've got to have as many plates possible spinning at the same time and keep them spinning or you'll have a mess on your hands.

[shaung 4]

I also email GZ consulate last night and had a reply this morning. They said that the P-3 had the son as a daughter, don't know how since the app doesn't ask but OK... Also there was a N/A in 31a and b. On top of that I used his mothers last name instead of his. They asked me to redo the P-3 for Xinjiao and one on her son. They want a birth certificate and passport on her son. He doesn't have a passport yet but they will apply today. They were suppose to do that yesterday. They also asked for a OF-169 on both of them.

Xinjiao and I both are doing it right now. Hopefully I will go to my congressman's local office tomorrow and start that ball to rolling. I am finishing up my paperwork and have been told that the final papers will be here tomorrow.

Dang, I'm suddenly busy. But I like it.

[Darnell 8,478]

ya, when you send in the son's paperwork (prolly now with a new version of the MOMs)

ask for expedite - use words 'K-2 potential age out - PLEASE EXPEDITE'

in red letters across the top and bottom of all of the forms that you send back to GUZ IV (from the P-3 packet)

Also put that wording on the outside of the envelope, in RED letters.

GUZ IV will actually move along faster, with that phrase everywhere, and YOU ask for earlier interview date via email, as well.

Hurry Hurry, Mr. Merry !

Edited March 29, 2011 by Darnell

[Darnell 8,478]

wei - any news ?

[shaung 4]

Hey Darnell,

Kind of. There is a real paperwork snafu going on that I hope to resolve in about 8 hours. After considerable talking and working through things then re-sending P-3 this morning they tell me that they do not have any paperwork at all. They do have it, just got to get the right ducks rolling. we are at 68 days and counting for her son's birthday.

Thanks for asking,

Shaun

[shaung 4]

I called the office in Guangzhou on the telephone number the NVC gave me. Though I did speak with a human they would not let me speak to anyone else and continually cut me off while I was speaking and told me to email them. Frankly we don't have that kind of time with their uninformative information. Quite frustrating. I've sent another email asking what info they do have and gave them the address where it was sent. It will take 3 to 5 days to verify that someone received the information my fiance sent in.

Any ideas? I am headed to my congressman's office in the morning.

Shaun

[shaung 4]

Here is an issue I can't find and answer for. My fiance who has a son about to age out wants her son to stay in China for six months, close to the end of the visa, after she comes here. Since he is about to age out and we get all of the work done then.... ####### I'm not sure how to ask this. If me fiance comes here alone but we do all the work necessary to make him eligible, can he remain in China or 6 months after she comes here and still keep visa?

I think I am asking the right question.

[Darnell 8,478]

1. RESEND the OF-169 set - one for her, one for the son,today-ish.

2. stay in China 6 months after visa approval? Sorry, with an 'age out' problem such as yours - I not recommend to even 'think' about staying in China 1 day past receiving the passport with the visa stamp in it.

AGE OUT problem

----

GUZ IV K-1 AGE OUT

[shaung 4]

Still waiting.

[pushbrk 12,883]

Here is an issue I can't find and answer for. My fiance who has a son about to age out wants her son to stay in China for six months, close to the end of the visa, after she comes here. Since he is about to age out and we get all of the work done then.... ####### I'm not sure how to ask this. If me fiance comes here alone but we do all the work necessary to make him eligible, can he remain in China or 6 months after she comes here and still keep visa?

I think I am asking the right question.

Huh? We covered this. He has to get here, you marry and he at least files for if not completes adjustment of status. I'd be planning on travel to the USA the same day or next day, once the visa is in hand.

[Darnell 8,478]

Still waiting.

did you resend two OF-169s with a cover letter covering the boy?

what about this 'concept' of remaining in china past the visa pickup date?

Are you checking the calendar for age out ?

6 months is 6 months, but - will it be 6 months with a successful AOS (since he immediately came to USA after visa packet arrival)

or

will it be 6 months with an unsuccessful AOS (because he stayed in China 6 months after the interview date) ?

[JimVaPhuong 4,863]

Gary made a good point earlier, and there actually is some case law to back this up. The law is clear that a K2 is eligible for a visa until they're 21 years old, but there is no clear requirement in the law that a K2 must adjust status before they're 21. There has been at least one district court and one circuit court that have determined that a K2's AOS eligibility requirement has been met if they get the visa, enter the US, and the K1 parent marries the USC petitioner within 90 days.

Verovkin v. Still, 2007, US District Court for Northern California:

In short, there is no statutory requirement that K-2 visa holders demonstrate that they are still under twenty-one when they apply for permanent residence. By imposing such a requirement in Plaintiff's case, USCIS applied an unreasonable interpretation of the INA. Such a requirement is at odds with the fact that a child can receive a K-2 visa up until the day of his or her twenty-first birthday. Following Defendant's interpretation of the age requirement, a K-2 visa issued under these circumstances would be worthless the next day. Congress could not have intended such an absurd result. Accordingly, the Court holds that, once an alien has demonstrated that he or she is under twenty-one when he or she receives a K-2 visa, 3 he or she remains eligible for later adjustment of status, even if he or she has reached the age of twenty-one in the interim.

The 10th Circuit Court reached a similar conclusion in Colmenares Carpio v. Holder, 2010. I can't open the uscourts.gov page on this right now, but this is an AILA Slip blog on the subject:

http://www.ailaslipopinionblog.org/2010/02/02/tenth-circuit-holds-k-2-visa-holders-do-not-age-out-for-purposes-of-adjustment-of-status/

Neither of these cases has, as of yet, resulted in any formal change of policy with USCIS. Also, in both of these cases the K2 had applied to adjust status before their 21st birthday, although both court decisions concluded that even this wasn't necessary.

I'm not suggesting that either of these cases ensures a trouble free AOS process for the K2 son. However, if they manage to get a K2 visa for the son, and they fulfill the other requirements of the K1, then they have a reasonable chance of ultimately getting the kid a green card if they have the patience and the cash to pursue the case through the courts.