K2 AOS in Limbo ( age out)

[Enigma11561 336]

My wife's son had his AOS interview the other day. He was issued his visa and came over prior to 21. His AOS papers were also filed prior to 21. However on the day of his AOS he has 21 and 6 months. The officer told us that she cannot adjust him. After some conversation where I was quoting some court cases about this "age out" issue she went to talk to a manager. Upon her return we were told that he is neither approved nor denied. But she will get back to us "in a month or two". If approved, great no problem. But if denied we could be facing some serious issues, going to court, possible deportation, cancellation of his EAD and possible the same with his drivers license.

Anybody else going through this? I can use all the advice I can get.

[JimVaPhuong 4,863]

My wife's son had his AOS interview the other day. He was issued his visa and came over prior to 21. His AOS papers were also filed prior to 21. However on the day of his AOS he has 21 and 6 months. The officer told us that she cannot adjust him. After some conversation where I was quoting some court cases about this "age out" issue she went to talk to a manager. Upon her return we were told that he is neither approved nor denied. But she will get back to us "in a month or two". If approved, great no problem. But if denied we could be facing some serious issues, going to court, possible deportation, cancellation of his EAD and possible the same with his drivers license.

Anybody else going through this? I can use all the advice I can get.

Did he come with a K2 visa? K2's are not protected by the CSPA. They must complete adjustment of status before they are 21. There are some appeals court cases where K2's who filed before they were 21 were able to get the denial overturned, and adjust status, but these cases have not yet resulted in any policy change at USCIS.

[Enigma11561 336]

Did he come with a K2 visa? K2's are not protected by the CSPA. They must complete adjustment of status before they are 21. There are some appeals court cases where K2's who filed before they were 21 were able to get the denial overturned, and adjust status, but these cases have not yet resulted in any policy change at USCIS.

Thanks Jim. There was a ruling from a district court in Colorado that ruled K2's don't age out. But that's there and the folks here in NY have their own minds. If I moved to Colorado he would have his green card already. You would think there would be some kind of consistency? Honestly, this has me very nervous.

[JimVaPhuong 4,863]

Thanks Jim. There was a ruling from a district court in Colorado that ruled K2's don't age out. But that's there and the folks here in NY have their own minds. If I moved to Colorado he would have his green card already. You would think there would be some kind of consistency? Honestly, this has me very nervous.

Did the Colorado case result in a policy change at the USCIS field offices in that district?

[Enigma11561 336]

Did the Colorado case result in a policy change at the USCIS field offices in that district?

I am not an attorney, but from what I heard, the decision is binding for any district in their area. It overrides immigration courts and the BIA.

[orangefluffy 0]

Board Sets Favorable Precedent for Children of Fiancées (K-2 Visa Holders)

The American Immigration Council's Legal Action Center (LAC) applauds the Board of Immigration Appeals (Board) for advancing family unity in its June 23, 2011 decision, Matter of Le. The Board’s long-awaited ruling favorably resolves the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. when under age 21, is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. In doing so, it rejected the Department of Homeland Security’s position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.

The Board’s decision is consistent with the position that the American Immigration Council and the American Immigration Lawyers Association advocated in amicus briefs submitted to the Board in approximately a half dozen other cases where the child turned 21 after being admitted to the United States. The noncitizens in these and the many other cases before both Immigration Judges and U.S. Citizenship and Immigration Services offices throughout the country now will be able to become lawful permanent residents as Congress intended.