AOS After Two Years Of Marriage Out of Status

[JimVaPhuong 4,863]

Hi. Yeah, I said, oops, the I-130. My children are not illegally here or in school illegally. There is no statute of limitations when we file for AOS. Our youngest crossed the border with his own Visa. This is another story. We are at worst, out of status. We are following the law. Forgive me, but I feel that you are jumping to conclusions. As with every case, there are variables, and I assure you that we have broken no laws.

If the youngest is the biological child of a US citizen then it should not have received any sort of visa. I'm surprised the consulate issued a visa rather than insisting the child's birth be registered and the child receive a US passport. Did the consulate know that the child had a US citizen parent? Or, did the US citizen parent not meet the residency requirements to pass on US citizenship to the child? Just trying to get a clear picture here.

Bear in mind that the requirement for the child to have "lawful admission for permanent residence" means you must apply for a green card for the child. A K2 is a non-immigrant visa. The child isn't admitted for permanent resident status until you submit an AOS application for it. I recommend you submit the N-600 after the child's green card is issued in order to ensure that the child's US citizenship is recognized.

You don't need to adopt the other children. If you married before they were 18 then they are your step-children for every purpose under the law. Even if any of them were over 18 but under 21 when they entered the US then they're eligible to adjust status based on the K2 visa.

[Richard-Y-Abigail 18]

Sorry. I have been away. I am reading everyone's response, and I will tell you what steps that we took to get here.

We crossed the border in June of 2009. My then fiance, her two boys, and our one boy who we had together were given Visas. My fiance, now my wife, had her K-1 Visa, and our three boys did indeed receive their K-2 Visas. As many have said, obtaining a visa for our youngest, who is half American, is against the rules. We revealed all this to the American consulate before we crossed the border. They knew that our youngest has claims to American citizenship, but without a DNA test, because we were not married at the time of his birth, his citizenship was not recognized. We are under no law that says that we must register him, or obtain for him a CRBA certificate. Of course it would be wrong not too. Since he was not a recognized American, then a K-2 Visa was allowed under these conditions.

Now that we are in the United States, and have the luxury of time, we are now following steps to have our blood drawn, and establishing proof that he is indeed entitled to his American citizenship. The N-600 form states that children who were born in another country, and who now reside in the United States, are to use the 600 form to receive their citizenship. By extrapolation, children have entered the United States without having proved their right to be here. However, some time ago, after discussing this with the people here on VJ, I sent a letter off to USCIS explaining that we made a mistake obtaining a Visa for our youngest son, even though we did not hide this information from anyone along the way. The answer that we received is that we did not, indeed, break the law, and that once we apply for his citizenship, the K-2 Visa would become null and void. If you are still in doubt, I will copy the letter that we received, for all here to read for themselves. It may help others who are in our situation.

As it was pointed out to me that I jumped to conclusions about Harpa Timsah saying that my children are here, in some way, illegally, enrolled in school, then I would politely ask what law that it is we broke. Since there is no time limit to adjust one's status, and since the law says that all children under the age of 18 must attend school, and since we declared at the consulate, in writing where our children would be attending, how then are we breaking the law? Their K-2 visas became null and void the minute that we were married, and our children fell under protected status, not only because they are all under 18 years of age, but also will adjust status at the same time as their mother. Any time between our marriage, and the adjustment of status, meaning anytime that my family is "out of status" will be forgiven. It is understood that a K-1 is only valid until the marriage takes place.

AOS will be simple for us. As Harpa Timsah put it, we will need to file an I-130 along with our I-485, and other adjustment forms, i.e.: EAD, AP, etc... in order to receive a permanent, 10 year green card. When I posted this question, I was just fishing for a way to avoid the two-year conditional greed card. I have read here on VJ that others, who have waited until they were married for two years, received their 10 year green cards, and avoided the 2 year conditional green card. We are perfectly comfortable receiving a two year conditional green card, if that is what is decided at the time of the interview. And as suggested, if it is necessary to send in I-130's for the children, then we will do so, but nothing that I have learned up to this point tells me that it is required, only desired. We can just submit the I-485, along with the children's paperwork, and receive two-year conditional status for all. We are prepared to pay the $2,340 necessary.

Two years has passed since we were married, and my wife and children did return and did redo their physicals, including chest X-rays, passing proof of TB skin tests, and blood test for Syphilus. Unfortunately, immigration law does not allow immigrants with active Tuberculosis to be processed, and cannot adjust status until they complete the medical testing and take all medicines, and treatments, and to finally have a clean X-ray. My wife was hopitalized in October of 2009 with active Tuberculosis, pneumonia, and a collapsed lung. Only once cleared of TB could my wife then apply for her AOS. And as a side note, all our children tested positive for TB, and each child underwent 9 months of TB testing, and took their medicine every week.

I am sure while some of you may have ideas as to if we should have a lawyer, or if in some way we have broken the law, and if I offend people here, it is not on purpose, nor will I be offended by what others say, but we have gone through this process with a fine tooth comb, we have dotted our I's, and we have crossed our T's, and still we have made mistakes. Please, don't simply tell me that we are doing something illegal. If you know for sure that we are breaking the law, intentionally, or unintentionally, give me some documentation, or at least explain your answer.

This was long, and I hope that I have filled in the blanks. I am sorry to all that I hurt with my words. It is not in my nature to be rude, and I apologize. Please forgive me. If you have other advice, or questions regarding my post, do not hesitate to bring your ideas to the conversation.

I look forward to hearing from you all.

[TBoneTX 46,276]

avoid the two-year conditional greed card.

This great typo is good advice for some unfortunate individuals who post in the Effects forum.

Seriously: Richard, you're sincere and well-spoken, and although your situation is complex, you'll get it straightened out. I'm in violent agreement that you should consult with at least one very sharp family-based immigration attorney before proceeding too much further on your own. Any potential missteps should be avoided, because it could save you many dollars, years, and heartaches later. Good luck and keep us apprised, si man.

[KayDeeCee 4,896]

AOS will be simple for us. As Harpa Timsah put it, we will need to file an I-130 along with our I-485, and other adjustment forms, i.e.: EAD, AP, etc...

It is pointless to file for AP. Your wife has been out of status for more than 180 days. If she leaves the US, it will trigger a ban. She will not be allowed back in the US using AP. She needs to have her AOS approved for her overstay to be forgiven. She should not leave the US without an approved permanent resident status and with her green card in hand.

[Harpa Timsah 13,258]

Now that we are in the United States, and have the luxury of time, we are now following steps to have our blood drawn, and establishing proof that he is indeed entitled to his American citizenship. The N-600 form states that children who were born in another country, and who now reside in the United States, are to use the 600 form to receive their citizenship. By extrapolation, children have entered the United States without having proved their right to be here. However, some time ago, after discussing this with the people here on VJ, I sent a letter off to USCIS explaining that we made a mistake obtaining a Visa for our youngest son, even though we did not hide this information from anyone along the way. The answer that we received is that we did not, indeed, break the law, and that once we apply for his citizenship, the K-2 Visa would become null and void. If you are still in doubt, I will copy the letter that we received, for all here to read for themselves. It may help others who are in our situation.

This is incorrect. Your step-children cannot file N-600 straight from a K-2 visa. They must file for AOS first. They must be in the US in possession of an immigrant visa or Greencard before you can file N-600 for them. They do not have this document.

I am sorry if I offended you by saying that your children are in school illegally. But, their visa is long expired. I found it sort of strange, that you would say they are all settled in and ready to go, and their english is great, when they are currently here on an expired K-2 visa, and a very critical part of their "getting settled" is missing (their legal presence). Your wife is accruing days of illegal presence. "Out-of-status" is the same as illegal.

I said it in this blunt way, because I thought it might wake you up to what would I would take as a very serious situation if I were in it, but it did not have the intended effect.

I strongly suggest a consultation with a lawyer for you.

[Harsh_77 718]

This is incorrect. Your step-children cannot file N-600 straight from a K-2 visa. They must file for AOS first. They must be in the US in possession of an immigrant visa or Greencard before you can file N-600 for them. They do not have this document.

I am sorry if I offended you by saying that your children are in school illegally. But, their visa is long expired. I found it sort of strange, that you would say they are all settled in and ready to go, and their english is great, when they are currently here on an expired K-2 visa, and a very critical part of their "getting settled" is missing (their legal presence). Your wife is accruing days of illegal presence. "Out-of-status" is the same as illegal.

I said it in this blunt way, because I thought it might wake you up to what would I would take as a very serious situation if I were in it, but it did not have the intended effect.

I strongly suggest a consultation with a lawyer for you.

Harpa - I believe N600 is for the youngest son, who has claim to US citizenship based on USC father.

OP - you older two sons are out of status just like their mother as their K2s have expired long time back, which means they are illegally present.

I am not sure where you got the idea that as soon as you two got married they can stay in as long as they like without completeing the AOS process.

[Brother Hesekiel 2,236]

Harpa,

I believe the K2 counts as "lawful admission" to the U.S. If the DNA test establishes the blood relationship between parent and child, I'd say the US citizen dad can go right ahead and claim his son's U.S. citizenship without having to go the AOS route.

Not that this helps much.

All (except for dad and the youngest son) are currently unlawfully present. I wonder if AOS could be started and thus create a period of authorized stay until the TBC clearance will allow for the AOS petition to be adjudicated. Frankly, I'm not sure. I would thus also suggest to consult with a competent immigration attorney to explore options available here.

[Richard-Y-Abigail 18]

Oh, I never meant to mean that we would file the N-600 for all three kids. I was just talking about filing this form for our youngest. After our two oldest do have their permanent residency, I hope to adopt them, and then we will file the N-600, so that they too, can receive their citizenship.

After reading about what you are all saying about the K-2 visas, I am getting the impression that the K-2 is not treated the same way that the K-1 is treated. In all my research, I have not yet found a deadline for filing for AOS, from a K-1 Visa. I have heard, often, how people with this kind of visa waited years without adjusting. Once they were adjusted, their days of illegal stay were forgiven. The way that I understand it, all out of status days are forgiven at the time of the AOS. USCIS is aware that people are here out of status, or if you will, illegal, but all is forgiven upon application of AOS. If, as all of you have said, our children fall under a different regulation or statute, can you please tell us what it is? One last point, if, as the K-1 is automatically invalid on the day that we marry, why is the K-2 treated differently? The fact that they are derivatives of the K-1 seems to not matter. There must be different rules for the K-2.

[VanessaTony 3,567]

Oh, I never meant to mean that we would file the N-600 for all three kids. I was just talking about filing this form for our youngest. After our two oldest do have their permanent residency, I hope to adopt them, and then we will file the N-600, so that they too, can receive their citizenship.

After reading about what you are all saying about the K-2 visas, I am getting the impression that the K-2 is not treated the same way that the K-1 is treated. In all my research, I have not yet found a deadline for filing for AOS, from a K-1 Visa. I have heard, often, how people with this kind of visa waited years without adjusting. Once they were adjusted, their days of illegal stay were forgiven. The way that I understand it, all out of status days are forgiven at the time of the AOS. USCIS is aware that people are here out of status, or if you will, illegal, but all is forgiven upon application of AOS. If, as all of you have said, our children fall under a different regulation or statute, can you please tell us what it is? One last point, if, as the K-1 is automatically invalid on the day that we marry, why is the K-2 treated differently? The fact that they are derivatives of the K-1 seems to not matter. There must be different rules for the K-2.

The K1 is void when you LAND, not when you marry. She lands, she has 90 days to marry you and that's it. After that she is illegally present. The overstay is forgiven if her AOS is APPROVED, not "application" as you stated.

You are right the children are required to go to school so even though they are now illegally present in the US, they must attend school. They CAN be detained, just like your wife, in immigration jail until they go before an immigration judge who will order you to file AOS immediately or they will be deported.

The K2's status is dependant on the K1 marrying, firstly, but ALSO on the K1 successfully AOSing and then also AOSing themselves. There's no protection of being ordered to file AOS like the K1, they are eligible to be deported as the protection is afforded to "immediate relatives and spouses".. which they are not. Lets say, *knock on wood* your wife dies tomorrow, the children will be eventually be deported because they have no way to AOS. That is my understanding anyway.

You're not helping anyone by waiting, in fact the longer you wait the longer it will take until they're eligible for USC. File ASAP to protect ALL of them.

[Richard-Y-Abigail 18]

Thank you everyone. Thanks be to God that we finally have the money to apply for their green card. Although we have a sponsor, we have not relied on them to help us financially. With the economy so bad, I have not had a whole lot of work to support us and pay for the AOS. We will be submitting the forms, along with the fees in about two weeks.

Phewww....I am tired.