K2, over aged?

[flocy 0]

my fiance filed his K1/K2 visa in September 2011. That time one of my daughter is 20 years old. As we read in some sites about visa, my K2 is still qualified to go with us (we are three) to the US even if she reaches 21 years old by the time we have our visa approved. We are waiting for our NOA2, it will be 5 months on Feb.8 and my daughter is turning 21 on Feb. 21. any comment please? can she still join us even if we go to US in April of 2012?

Edited January 15, 2012 by flocy

[bigdog 376]

http://www.visajourney.com/faq/k1k2visa-outline.html Follow is an article on aging out, http://thelegalintelligencer.typepad.com/tli/2009/06/adjustment-status-for-k2-visa-holders-deciphering-the-aging-out-problem.html and USCIS http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD, We did not deal with this as her son stayed in China for College.

[Enigma11561 336]

The k-2 child, regardless of when the visa was issued, MUST be on American soil BEFORE turning 21. Even by one day. The age of 21 is the break point. After 21 it is a whole different play game.

Prior to around June 2011, any person entering the US before 21, but turning 21 before being able to adjust status was denied the ability to receive a green card. There were many law suits about this since the USCIS and the State Department play by different rules. A final decision, by the Immigration Board, see below, finally states that as long as a K-2 derivative enters the US before 21, regardless of their age before being adjudicated for AOS, can be issued a green card.

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

[Enigma11561 336]

The k-2 child, regardless of when the visa was issued, MUST be on American soil BEFORE turning 21. Even by one day. The age of 21 is the break point. After 21 it is a whole different play game.

Prior to around June 2011, any person entering the US before 21, but turning 21 before being able to adjust status was denied the ability to receive a green card. There were many law suits about this since the USCIS and the State Department play by different rules. A final decision, by the Immigration Board, see below, finally states that as long as a K-2 derivative enters the US before 21, regardless of their age before being adjudicated for AOS, can be issued a green card.

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

Bottom line

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).

[aaron2020 11,651]

my fiance filed his K1/K2 visa in September 2011. That time one of my daughter is 20 years old. As we read in some sites about visa, my K2 is still qualified to go with us (we are three) to the US even if she reaches 21 years old by the time we have our visa approved. We are waiting for our NOA2, it will be 5 months on Feb.8 and my daughter is turning 21 on Feb. 21. any comment please? can she still join us even if we go to US in April of 2012?

Sorry about your situation but it's going to be a miracle for your daughter to immigrate to the US. A K-2ust have a visa and enter the US before age 21. If your daughter turns 21, she is out of luck.

You and you fiancée need to request an expedite of your case. Do whatever you can to get a k-2 and your daughter to the US before her 21st birthday.

[Gary and Alla 3,694]

my fiance filed his K1/K2 visa in September 2011. That time one of my daughter is 20 years old. As we read in some sites about visa, my K2 is still qualified to go with us (we are three) to the US even if she reaches 21 years old by the time we have our visa approved. We are waiting for our NOA2, it will be 5 months on Feb.8 and my daughter is turning 21 on Feb. 21. any comment please? can she still join us even if we go to US in April of 2012?

No. And there were recent rulings on that this last year. The VISA must be issued BEFORE the person's 21st birthday. IF the visa is issued before age 21 the AOS will be accepted even after age 21. If the visa is NOT issued by age 21 they person will have to wait until the parent (you) becomes a US citizen and then you can petition your child but the wait period for a 21+ child is more than 7 years right now.

You will not have your visa before she is 21.

[Gary and Alla 3,694]

Bottom line

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).

Thanks, and it was YOUR case I referred to and this was the ruling I referred to.

The OP will not be able to have their child enter before age 21. Even an expedite will only affect the petition, not NVC and not the consulate and they would be very unlikely to agree to an expedite for this reason.

[Darnell 8,478]

The OP can request an expedite either with USCIS or the US Consulate IV unit,

citing 'Potential K-2 age out'

and many times, the expedite is granted.

At least these last 2 years.

[Gary and Alla 3,694]

The OP can request an expedite either with USCIS or the US Consulate IV unit,

citing 'Potential K-2 age out'

and many times, the expedite is granted.

At least these last 2 years.

I think you need to check on that in detail Darnell. Requests for expedites for age out purposes were quite often granted for Adjustment of Status AFTER they arrived and before this year's rulings. Also for other reasons. We got an expedite of our oldest son's AOS so he could go back to college. We had his AP in 10 days and green card IN HAND in 7 weeks. Given the ruling this year I doubt the whole age out thing is even an issue anymore for USCIS.

As far as expediting an I-129 because of age out of a K-2 beneficiary derivitive of that petition I have never heard of that. I cannot say one way or the other on NVC or consulates.

It does not cost anything to ask.

[Darnell 8,478]

no, I mean specifically on the:

1. filing the I-129F to USCIS and

2. processing at a US Embassy, IV unit.

Not AOS, at all.

The OP, alas, is still at USCIS - and it IS possible to request the expedite NOW, but it's actually more hoops to jump through then on I-129F submittal or IV unit processing.

Based on the birthday, though - I sense it won't go fast enough to meet the 21st birthday -

which, alas - means boots on the ground by the 21st birthday. There's a chance, albeit slight. The OP has to get a Tier 2 Rep on Tuesday, when USCIS is open again, and start that expedite process.

There has been some wiggle room on the birthday date, if the 21st birthday was AFTER the visa interview but before arrival in USA, but it's been rare and rarely reported here.

Edited January 16, 2012 by Darnell

[Enigma11561 336]

There has been some wiggle room on the birthday date, if the 21st birthday was AFTER the visa interview but before arrival in USA, but it's been rare and rarely reported here.

I am not sure what you mean here. I am pretty familiar with this as we both have spoken about it before on previous threads.

The K2 MUST have the embassy interview AND arrival before turning 21. Even one day is ok. Then there will be no further issues when adjusting status. This is the new ruling I have posted above.

It is possible to request expedited processing from both the NVC and the embassy, but from the timelines the OP has posted there is simply not enough time.

[flocy 0]

thank you very much though im really disappointed with my daughter's situation, my fiance will try to call the CSC on tuesday to at least try if something could be done to be able to beat up her 21st bday... can he ask for a county's representative to help him to ask for an expedite? he already sent an expedite letter in October base on Humanitarian consideration but it was turned down. will it be okey to call them again?

[Enigma11561 336]

It never hurts to try again, but I think you simply do not have enough time.