K4 question

[SaysWho 3]

Hi all,

I have just received my K3 and my unmarried daughter (20 years old) has an appointment at the US Consulate for her K4. We were told at my appointment that her K4 will be issued and valid until June of next year when she turns 21.

Of course she was listed on the I-130 and I-129F, but my husband did not file an I-130 for her as she was over 18 when we married, so he cannot petition for her. I have searched extensively on this site (and others), but we're still not clear....I know she will require an I-130, but we are totally confused as to who files the petition (we don't think he can ever file one because of not being married prior to her turning 18 and I can't petiton for her until my AOS is complete) and to when it's filed (we don't think we can do it now, because neither of us can at this point in time), and we have read somewhere that after she's here the I-130 is filed at the same time as her AOS. (But here of course we run into the age thing...I believe she must file AOS before turning 21 and I might not be LPR to file the I-130 for her by then.)

The other aspect of this is the "Following to Join" - it says that it cannot be used by someone who entered as an immediate family member, but can be used by someone on a "fiance visa". So as a K3 holder, did I enter as an immediate relative of my husband, or on the I-129F???

This is all so confusing.... I am sure there are others out there that have experienced this senario. Many thanks in advance for any assistance.

Annie

[pushbrk 12,994]

Hi all,

I have just received my K3 and my unmarried daughter (20 years old) has an appointment at the US Consulate for her K4. We were told at my appointment that her K4 will be issued and valid until June of next year when she turns 21.

Of course she was listed on the I-130 and I-129F, but my husband did not file an I-130 for her as she was over 18 when we married, so he cannot petition for her. I have searched extensively on this site (and others), but we're still not clear....I know she will require an I-130, but we are totally confused as to who files the petition (we don't think he can ever file one because of not being married prior to her turning 18 and I can't petiton for her until my AOS is complete) and to when it's filed (we don't think we can do it now, because neither of us can at this point in time), and we have read somewhere that after she's here the I-130 is filed at the same time as her AOS. (But here of course we run into the age thing...I believe she must file AOS before turning 21 and I might not be LPR to file the I-130 for her by then.)

The other aspect of this is the "Following to Join" - it says that it cannot be used by someone who entered as an immediate family member, but can be used by someone on a "fiance visa". So as a K3 holder, did I enter as an immediate relative of my husband, or on the I-129F???

This is all so confusing.... I am sure there are others out there that have experienced this senario. Many thanks in advance for any assistance.

Annie

Her K4 visa will allow her to stay until she's 21 but she won't be able to adjust status before then She's your immediate relative, not your husband's. The only way she can stay is if she gets a student visa or marries a US Citizen. Otherwise she'll be out of status on her birthday.

[SaysWho 3]

Hi all,

I have just received my K3 and my unmarried daughter (20 years old) has an appointment at the US Consulate for her K4. We were told at my appointment that her K4 will be issued and valid until June of next year when she turns 21.

Of course she was listed on the I-130 and I-129F, but my husband did not file an I-130 for her as she was over 18 when we married, so he cannot petition for her. I have searched extensively on this site (and others), but we're still not clear....I know she will require an I-130, but we are totally confused as to who files the petition (we don't think he can ever file one because of not being married prior to her turning 18 and I can't petiton for her until my AOS is complete) and to when it's filed (we don't think we can do it now, because neither of us can at this point in time), and we have read somewhere that after she's here the I-130 is filed at the same time as her AOS. (But here of course we run into the age thing...I believe she must file AOS before turning 21 and I might not be LPR to file the I-130 for her by then.)

The other aspect of this is the "Following to Join" - it says that it cannot be used by someone who entered as an immediate family member, but can be used by someone on a "fiance visa". So as a K3 holder, did I enter as an immediate relative of my husband, or on the I-129F???

This is all so confusing.... I am sure there are others out there that have experienced this senario. Many thanks in advance for any assistance.

Annie

Her K4 visa will allow her to stay until she's 21 but she won't be able to adjust status before then She's your immediate relative, not your husband's. The only way she can stay is if she gets a student visa or marries a US Citizen. Otherwise she'll be out of status on her birthday.

Thank you for your quick response.

So the only hope would be a miracle...that my AOS happened before next June? (Then I could petition for her concurrently with her AOS.)

Annie

[pushbrk 12,994]

Hi all,

I have just received my K3 and my unmarried daughter (20 years old) has an appointment at the US Consulate for her K4. We were told at my appointment that her K4 will be issued and valid until June of next year when she turns 21.

Of course she was listed on the I-130 and I-129F, but my husband did not file an I-130 for her as she was over 18 when we married, so he cannot petition for her. I have searched extensively on this site (and others), but we're still not clear....I know she will require an I-130, but we are totally confused as to who files the petition (we don't think he can ever file one because of not being married prior to her turning 18 and I can't petiton for her until my AOS is complete) and to when it's filed (we don't think we can do it now, because neither of us can at this point in time), and we have read somewhere that after she's here the I-130 is filed at the same time as her AOS. (But here of course we run into the age thing...I believe she must file AOS before turning 21 and I might not be LPR to file the I-130 for her by then.)

The other aspect of this is the "Following to Join" - it says that it cannot be used by someone who entered as an immediate family member, but can be used by someone on a "fiance visa". So as a K3 holder, did I enter as an immediate relative of my husband, or on the I-129F???

This is all so confusing.... I am sure there are others out there that have experienced this senario. Many thanks in advance for any assistance.

Annie

Her K4 visa will allow her to stay until she's 21 but she won't be able to adjust status before then She's your immediate relative, not your husband's. The only way she can stay is if she gets a student visa or marries a US Citizen. Otherwise she'll be out of status on her birthday.

Thank you for your quick response.

So the only hope would be a miracle...that my AOS happened before next June? (Then I could petition for her concurrently with her AOS.)

Annie

You can petition but you're petitioning for a visa, not AOS. You don't have standing as an LPR to petition for immediate AOS for your daughter. Only a USC can do that and only if she qualifies as a step-child. She doesn't because the marriage took place after your daughter turned 18.

The miracle you're looking for is the student visa or marriage to a USC, not your own AOS being completed. If you had come on a K1 instead of a K3, she would be able to adjust status and USCIS and DOS would expedite to avoid the age out. This is a major drawback to a K4.

[SaysWho 3]

Hi all,

I have just received my K3 and my unmarried daughter (20 years old) has an appointment at the US Consulate for her K4. We were told at my appointment that her K4 will be issued and valid until June of next year when she turns 21.

Of course she was listed on the I-130 and I-129F, but my husband did not file an I-130 for her as she was over 18 when we married, so he cannot petition for her. I have searched extensively on this site (and others), but we're still not clear....I know she will require an I-130, but we are totally confused as to who files the petition (we don't think he can ever file one because of not being married prior to her turning 18 and I can't petiton for her until my AOS is complete) and to when it's filed (we don't think we can do it now, because neither of us can at this point in time), and we have read somewhere that after she's here the I-130 is filed at the same time as her AOS. (But here of course we run into the age thing...I believe she must file AOS before turning 21 and I might not be LPR to file the I-130 for her by then.)

The other aspect of this is the "Following to Join" - it says that it cannot be used by someone who entered as an immediate family member, but can be used by someone on a "fiance visa". So as a K3 holder, did I enter as an immediate relative of my husband, or on the I-129F???

This is all so confusing.... I am sure there are others out there that have experienced this senario. Many thanks in advance for any assistance.

Annie

Her K4 visa will allow her to stay until she's 21 but she won't be able to adjust status before then She's your immediate relative, not your husband's. The only way she can stay is if she gets a student visa or marries a US Citizen. Otherwise she'll be out of status on her birthday.

Thank you for your quick response.

So the only hope would be a miracle...that my AOS happened before next June? (Then I could petition for her concurrently with her AOS.)

Annie

You can petition but you're petitioning for a visa, not AOS. You don't have standing as an LPR to petition for immediate AOS for your daughter. Only a USC can do that and only if she qualifies as a step-child. She doesn't because the marriage took place after your daughter turned 18.

The miracle you're looking for is the student visa or marriage to a USC, not your own AOS being completed. If you had come on a K1 instead of a K3, she would be able to adjust status and USCIS and DOS would expedite to avoid the age out. This is a major drawback to a K4.

So, I had understood that if I was a LPR, and therefore in a position to file an I-130 for her before here K4 expired, her I-130 petition could be sent concurrently with her AOS. Is that incorrect?

Do we know why a K2 could adjust status, but not a K4?

Thanks again for any help with me understanding this.

[Thai family 0]

Do we know why a K2 could adjust status, but not a K4?

Thanks again for any help with me understanding this.

Hi Annie,

Congratulations on your K-3! Please don't give up hope. Do a thorough investigation and talk to a competent family immigration lawyer if necessary. Below is some of the text I found on the Dept of State and the USCIS's websites.

From what it says there, a step parent can file a petition before a child turns 21. If the embassy does not clearly answer the question at your daughter's interview I'd call the Dept of State's Visa Services Inquiry Line at or email them at usvisa@state.gov You can talk to a person after waiting on hold. I have found them much more helpful than the USCIS line. I hope your husband is able to file her I-130/AOS immediately after she enters on her visa and flag it to be expedited due to the age out issues. If this is indeed true, you might want to delay adjusting your status so she doesn't lose her K-4 status. I sure hope I'm interpreting this right for your sakes.

I wish you success. Again, congratulations!

Thai Mom

http://travel.state.gov/visa/immigrants/ty...993.html#adjust

http://www.uscis.gov/propub/ProPubVAP.jsp?...5a9f46924858b06

K-4 aliens must be under 21 years of age and unmarried, in order to continue to meet the definition of “child” under section 101(B)(1) of the Act.

However, nothing in the law prevents the U.S. citizen stepparent from filing Form I-130 for the child, and such action would be prudent and beneficial to the child. The child will not be able to adjust status to that of a lawful permanent resident (LPR) or even file an application for that status until the U.S. citizen stepparent files Form I-130 on the child’s behalf. If the U.S. citizen never files the Form I-130 on behalf of the child, the biological parent may do so after immigrating, but the child may have to wait for a visa number to become available. In addition, since the parent would no longer be in K-3 status but would be an LPR, the child would no longer be in lawful K-4 status, since it is merely a derivative classification.

An alien admitted to the United States as a K-4 under section 101(a)(15)(K)(iii) of the Act may apply for adjustment of status to that of permanent residence pursuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien’s behalf, by the same citizen who petitioned for the alien’s parent’s K-3 status. Upon approval of the application, the director shall record his or her lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act. An alien admitted to the U.S. as a K-3/K-4 alien may not adjust to that of permanent resident status in any way other than as a spouse or child of the U.S. citizen who originally filed the petition for that alien’s K-3/K-4 status.

_____________

From the DOS website:

How does a K-4 child adjust status in the United States?

The K-4 child will not be able to file for adjustment of status in the United States until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence.

[SaysWho 3]

Do we know why a K2 could adjust status, but not a K4?

Thanks again for any help with me understanding this.

Hi Annie,

Congratulations on your K-3! Please don't give up hope. Do a thorough investigation and talk to a competent family immigration lawyer if necessary. Below is some of the text I found on the Dept of State and the USCIS's websites.

From what it says there, a step parent can file a petition before a child turns 21. If the embassy does not clearly answer the question at your daughter's interview I'd call the Dept of State's Visa Services Inquiry Line at or email them at usvisa@state.gov You can talk to a person after waiting on hold. I have found them much more helpful than the USCIS line. I hope your husband is able to file her I-130/AOS immediately after she enters on her visa and flag it to be expedited due to the age out issues. If this is indeed true, you might want to delay adjusting your status so she doesn't lose her K-4 status. I sure hope I'm interpreting this right for your sakes.

I wish you success. Again, congratulations!

Thai Mom

http://travel.state.gov/visa/immigrants/ty...993.html#adjust

http://www.uscis.gov/propub/ProPubVAP.jsp?...5a9f46924858b06

K-4 aliens must be under 21 years of age and unmarried, in order to continue to meet the definition of “child” under section 101(B)(1) of the Act.

However, nothing in the law prevents the U.S. citizen stepparent from filing Form I-130 for the child, and such action would be prudent and beneficial to the child. The child will not be able to adjust status to that of a lawful permanent resident (LPR) or even file an application for that status until the U.S. citizen stepparent files Form I-130 on the child’s behalf. If the U.S. citizen never files the Form I-130 on behalf of the child, the biological parent may do so after immigrating, but the child may have to wait for a visa number to become available. In addition, since the parent would no longer be in K-3 status but would be an LPR, the child would no longer be in lawful K-4 status, since it is merely a derivative classification.

An alien admitted to the United States as a K-4 under section 101(a)(15)(K)(iii) of the Act may apply for adjustment of status to that of permanent residence pursuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien’s behalf, by the same citizen who petitioned for the alien’s parent’s K-3 status. Upon approval of the application, the director shall record his or her lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act. An alien admitted to the U.S. as a K-3/K-4 alien may not adjust to that of permanent resident status in any way other than as a spouse or child of the U.S. citizen who originally filed the petition for that alien’s K-3/K-4 status.

_____________

From the DOS website:

How does a K-4 child adjust status in the United States?

The K-4 child will not be able to file for adjustment of status in the United States until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence.

Thank you very much....for your congradulations and for your very helpful information (K3 was in hand exactly 8 months from the day we mailed our petition!) I was unaware that she would loose her K4 status if I adjust my status, so I was really on the wrong track with that one. My learning curve is going straight up with all this!!

Yes, we are going to consult with a lawyer on this. It is all very complicated.

Blessings!

Annie

[Thai family 0]

Our DIL will be right at the eight month mark if her visa is approved today. We're hoping for a call with good news before midnight.

You definitely have some more hard work ahead. I'll pray for you.

Thai Mom

[pushbrk 12,994]

Do we know why a K2 could adjust status, but not a K4?

Thanks again for any help with me understanding this.

Hi Annie,

Congratulations on your K-3! Please don't give up hope. Do a thorough investigation and talk to a competent family immigration lawyer if necessary. Below is some of the text I found on the Dept of State and the USCIS's websites.

From what it says there, a step parent can file a petition before a child turns 21. If the embassy does not clearly answer the question at your daughter's interview I'd call the Dept of State's Visa Services Inquiry Line at or email them at usvisa@state.gov You can talk to a person after waiting on hold. I have found them much more helpful than the USCIS line. I hope your husband is able to file her I-130/AOS immediately after she enters on her visa and flag it to be expedited due to the age out issues. If this is indeed true, you might want to delay adjusting your status so she doesn't lose her K-4 status. I sure hope I'm interpreting this right for your sakes.

I wish you success. Again, congratulations!

Thai Mom

http://travel.state.gov/visa/immigrants/ty...993.html#adjust

http://www.uscis.gov/propub/ProPubVAP.jsp?...5a9f46924858b06

K-4 aliens must be under 21 years of age and unmarried, in order to continue to meet the definition of “child” under section 101(B)(1) of the Act.

However, nothing in the law prevents the U.S. citizen stepparent from filing Form I-130 for the child, and such action would be prudent and beneficial to the child. The child will not be able to adjust status to that of a lawful permanent resident (LPR) or even file an application for that status until the U.S. citizen stepparent files Form I-130 on the child’s behalf. If the U.S. citizen never files the Form I-130 on behalf of the child, the biological parent may do so after immigrating, but the child may have to wait for a visa number to become available. In addition, since the parent would no longer be in K-3 status but would be an LPR, the child would no longer be in lawful K-4 status, since it is merely a derivative classification.

An alien admitted to the United States as a K-4 under section 101(a)(15)(K)(iii) of the Act may apply for adjustment of status to that of permanent residence pursuant to section 245 of the Act at any time following the approval of the Form I-130 petition filed on the alien’s behalf, by the same citizen who petitioned for the alien’s parent’s K-3 status. Upon approval of the application, the director shall record his or her lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act. An alien admitted to the U.S. as a K-3/K-4 alien may not adjust to that of permanent resident status in any way other than as a spouse or child of the U.S. citizen who originally filed the petition for that alien’s K-3/K-4 status.

_____________

From the DOS website:

How does a K-4 child adjust status in the United States?

The K-4 child will not be able to file for adjustment of status in the United States until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence.

Thank you very much....for your congradulations and for your very helpful information (K3 was in hand exactly 8 months from the day we mailed our petition!) I was unaware that she would loose her K4 status if I adjust my status, so I was really on the wrong track with that one. My learning curve is going straight up with all this!!

Yes, we are going to consult with a lawyer on this. It is all very complicated.

Blessings!

Annie

Unfortunately, while the above information regarding adjusting status is correct for a qualifying step child, it is not applicable to your daughter because your marriage took place after her 18th birthday. It's not new information. It's exactly applicable and was done in the case of my wife's daughter but she was 17 at the time of our marriage.

The "why" is a loophole K2's have in that they adjust status without any I-130 ever being filed. The problem is the I-130.

[Thai family 0]

Unfortunately, while the above information regarding adjusting status is correct for a qualifying step child, it is not applicable to your daughter because your marriage took place after her 18th birthday. It's not new information. It's exactly applicable and was done in the case of my wife's daughter but she was 17 at the time of our marriage.

The "why" is a loophole K2's have in that they adjust status without any I-130 ever being filed. The problem is the I-130.

______________________________

If that is true, it's a good one for the courts and legislators to look at. Not that it's a speedy process. I never imagined how complex these immigration issues could be, and unfortunately the vast majority of American citizens haven't a clue. I pray a solution can be found for Annie's daughter.

Thai Mom

Edited July 23, 2008 by Thai family

[pushbrk 12,994]

Unfortunately, while the above information regarding adjusting status is correct for a qualifying step child, it is not applicable to your daughter because your marriage took place after her 18th birthday. It's not new information. It's exactly applicable and was done in the case of my wife's daughter but she was 17 at the time of our marriage.

The "why" is a loophole K2's have in that they adjust status without any I-130 ever being filed. The problem is the I-130.

______________________________

If that is true, it's a good one for the courts and legislators to look at. Not that it's a speedy process. I never imagined how complex these immigration issues could be, and unfortunately the vast majority of American citizens haven't a clue. I pray a solution can be found for Annie's daughter.

Thai Mom

I think it's more likely the K2 loophole would be closed than the K4 age out extended.

[Thai family 0]

Unfortunately, while the above information regarding adjusting status is correct for a qualifying step child, it is not applicable to your daughter because your marriage took place after her 18th birthday. It's not new information. It's exactly applicable and was done in the case of my wife's daughter but she was 17 at the time of our marriage.

The "why" is a loophole K2's have in that they adjust status without any I-130 ever being filed. The problem is the I-130.

pushbrk,

Could you cite the references for the distinction between K-2s and K-4s? I have been trying to figure out what the regs say. I see where an I-130 can't be filed in her behalf, but the AOS instructions as to who can file don't appear to be so clear:

"Beneficiary of an approved Form I-130 filed by a qualifying relative; Qualifying derivative, family-based beneficiary;"

What you are saying is that she is not a qualifying derivative. How come K-2s can adjust status when they're over 18 and it's obvious their parent and USC step-parent have been married for less than two years? Doesn't their parent have to have an approved I-130 in order for the AOS to be approved? The K-4 visa is granted on the basis of the parent's approved I-129. The I-130 isn't at the embassy when the visa is approved, I'm all for some sort of equity in this process. What a puzzle.

BTW, my kids got their approval. They waited five hours and she was asked three simple questions. They are so excited.

Still hoping for Annie's daughter,

Thai Mom

[pushbrk 12,994]

I-130 is not required to adjust from K1 or K2 but is required to adjust from K3 and K4.

Refer to requirements for AOS from K1 to confirm.

[Thai family 0]

I-130 is not required to adjust from K1 or K2 but is required to adjust from K3 and K4.

Refer to requirements for AOS from K1 to confirm.

This is one for the courts. It's my impression that the spirit of the LIFE is being violated.

[pushbrk 12,994]

I-130 is not required to adjust from K1 or K2 but is required to adjust from K3 and K4.

Refer to requirements for AOS from K1 to confirm.

This is one for the courts. It's my impression that the spirit of the LIFE is being violated.

Perhaps but how do you justify throwing out the long standing I-130 definition of step-child over solving the apparent inequity by closing the K2 loophole? I'm all for your solution but can't see it being the result of any court action.

You've just now become aware of the issue but it's been around quite some time.

Edited July 25, 2008 by pushbrk