IMPORTANT- BIA RULES K2S DO NOT AGE OUT

[Enigma11561 336]

Please read this. The BIA has finally ruled that K2s do NOT age out as of June 23. 2011.

http://immdaily.com/pdfs/Verovkin%2012-21-07.pdf

[JimVaPhuong 4,863]

Please read this. The BIA has finally ruled that K2s do NOT age out as of June 23. 2011.

http://immdaily.com/pdfs/Verovkin%2012-21-07.pdf

The PDF you've linked to is the 2007 Verovkin decision which was issued by a district court in California. Where is the BIA decision you alluded to?

[Enigma11561 336]

Jim, having a hard time with the link so I did a copy and paste of the beginning of the decision.Self explanatory. Will try to fix later.

Cite as 25 I&N Dec. 541 (BIA 2011) Interim Decision #3719

541

Matter of Hieu Trung LE, Respondent

Decided June 23, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii)

of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), is not

ineligible for adjustment of status simply by virtue of having turned 21 after admission to the

United States on a K-2 nonimmigrant visa.

FOR RESPONDENT: Lisa H. York, Esquire, Denver, Colorado

FOR THE DEPARTMENT OF HOMELAND SECURITY: Leila Cronfel, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU, PAULEY, and GREER, Board Members.

GREER, Board Member:

In this case, we address issues pertaining to the child of a nonimmigrant

fiancée visa holder who obtained admission as a derivative of his mother’s

fiancée status. The respondent, a K-2 visa holder, sought to adjust his status

to that of a lawful permanent resident, but he had turned 21 prior to the

adjudication of his application for adjustment of status by the Immigration

Judge. We conclude that to adjust status based on a K-2 visa, an alien

derivative child must establish that he or she was under 21 years of age at the

time of admission to the United States. The respondent’s appeal will

be sustained and the record will be remanded to the Immigration Judge

to allow the respondent to renew his application for adjustment of status

pursuant to sections 245(a) and (d) of the Immigration and Nationality Act,

8 U.S.C. §§ 1255(a) and (d) (2006).

I

[Enigma11561 336]

try this. http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf

[RandyW 149]

The new determination would be made at the time of admission, as per "prior law"

http://www.visajourney.com/forums/topic/287035-calling-all-k-2-aosers-past-and-present/page__view__findpost__p__4741809

[Enigma11561 336]

I typed this in personally rather than copy and paste. If this does not work try to google bia decision3719.It came up as the first entry.

http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf

[JimVaPhuong 4,863]

I typed this in personally rather than copy and paste. If this does not work try to google bia decision3719.It came up as the first entry.

http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf

Thanks! I saw walserr's post in the K2 thread. This is good news.

[Gary and Alla 3,694]

Great News! Some people have questioned the need and validity of the K visa over the CR visa in the past. This is one reason to choose the K-1 as it includes children over age 18 but under age 21. Now that this has been cleared up with a very logical decision this should stop the non-sensical rush people get into to adjust status.

There is no particular deadline for a K-1 to adjust status and a K-2 cannot adjust status until the K-1 has (or simultaneously) so how was it ever logical to apply this artificial deadline to K-2s? It never did make any sense. It now appears that the "deadline" is that the 21st birthday does not occur before the petition is approved. At the very least, the issuance of the visa. Makes sense. Given that the processing times vary widely (my petition was approved in 58 days vs. 6-7 months for some people) why should a K-2 be denied because the Service Center is running slow? I would have preferred the ruling to state that the cut-off should be the filing date of the I-129f. I guess that will be next.

For you, Enigma, great news and congratulations! I am sure it is a big relief for you and your wife. Thanks for updating us.

[RandyW 149]

Great News! Some people have questioned the need and validity of the K visa over the CR visa in the past. This is one reason to choose the K-1 as it includes children over age 18 but under age 21. Now that this has been cleared up with a very logical decision this should stop the non-sensical rush people get into to adjust status.

There is no particular deadline for a K-1 to adjust status and a K-2 cannot adjust status until the K-1 has (or simultaneously) so how was it ever logical to apply this artificial deadline to K-2s? It never did make any sense. It now appears that the "deadline" is that the 21st birthday does not occur before the petition is approved. At the very least, the issuance of the visa. Makes sense. Given that the processing times vary widely (my petition was approved in 58 days vs. 6-7 months for some people) why should a K-2 be denied because the Service Center is running slow? I would have preferred the ruling to state that the cut-off should be the filing date of the I-129f. I guess that will be next.

For you, Enigma, great news and congratulations! I am sure it is a big relief for you and your wife. Thanks for updating us.

No - the age used is the age at the time of entry. This is also the deadline to use the visa - the K-2 visa holder must be under 21 at the POE.

The Child Status Protection Act (CSPA) still does not apply.

[RandyW 149]

Doh! Delete me

Edited June 25, 2011 by RandyW

[JimVaPhuong 4,863]

No - the age used is the age at the time of entry. This is also the deadline to use the visa - the K-2 visa holder must be under 21 at the POE.

The Child Status Protection Act (CSPA) still does not apply.

This is correct. According to the BIA decision, the child's age when they are admitted to the US using the K2 visa now determines their eligibility to adjust status. This makes it relatively clear cut - if the child is under 21 when they enter the US, then they're eligible to adjust status, provided that they adjust as a K2. There is still one way it could blow up for a K2 - if the K1 marries after the 90 day window has expired then the K1 is still eligible to adjust as an immediate relative of a US citizen, but a K2 who is over 18 years of age would not be eligible as an immediate relative and would not be able to adjust status.

So, this decision effectively moves the line. A K2 who is over 18 years of age no longer needs to complete AOS before they are 21. They only need to enter the US before they are 21.

[Enigma11561 336]

This is correct. According to the BIA decision, the child's age when they are admitted to the US using the K2 visa now determines their eligibility to adjust status. This makes it relatively clear cut - if the child is under 21 when they enter the US, then they're eligible to adjust status, provided that they adjust as a K2. There is still one way it could blow up for a K2 - if the K1 marries after the 90 day window has expired then the K1 is still eligible to adjust as an immediate relative of a US citizen, but a K2 who is over 18 years of age would not be eligible as an immediate relative and would not be able to adjust status.

So, this decision effectively moves the line. A K2 who is over 18 years of age no longer needs to complete AOS before they are 21. They only need to enter the US before they are 21.

As a follow up, I am happy to report that my step son got his NOA today offering congratulations of being approved for his green card. I guess that BIA ruling is actually working. I hope it helps all the others in this situation.

[TBoneTX 45,273]

Congratulations, si man!

[rainkiss10 0]

my daughter got her letter for reopening of her AOS on June 24... just one day after the ruling was approved... it was fast and a welcome surprise! She got her NOA from USCIS june 28!

[Enigma11561 336]

Rainkiss. Looks like a lot of other folks are gonna be real happy now. Good luck to you.