When is a K2 no longer dependent on K1 status?

[CAdreamer 14]

I hope this is the correct forum to post this in.

I know that the K2 status is dependent on the K1 status -- ie, if the K1 AOS or ROC is denied, so is the K2, but at what point does the K2 get status in their own right?

Here's the scenario I'm thinking of... K1 and K2 come over. K1 and USC marry and K1/K2 adjust status. 2 years down the road, K1 and K2 remove conditions. Then the K1 dies. What happens to the K2 at that point? Or what (if it's different) what happens if the K1 dies before ROC? Specifically, I'm thinking of a young K2 (under 14).

Does the K2 have to go back to where they came from if there is no more K1 to give them status? Do they have the option of staying in the US and naturalizing after living in the step-parent relationship with the USC after 5 years, even though the K1 (obviously) will not be naturalizing?

I'm a mom of young kids... just trying to make sure I know how all my bases are covered. I'm not planning to get hit by a bus or anything, but you never know... knock on wood.

[Ontarkie 14,237]

Good question, but here is another thing for you to think about.

If something happens to you the kids bio dad gets full custody of them, they would likely never come to remove conditions because they would be back with their father. Now that is if he didn't give up all rights to them. The father or courts grant you permission to move the kids to the US, but it doesn't remove the fathers rights to the kids. It is very sad to think about I was dreading it till my oldest hit 18, it was decided that the kids would live here with their stepfather but if push came to shove the oldest would take custody of the younger ones to keep them away from their father. Well that is if he ever found out. But that is a long story we won't get into.

[Gary and Alla 3,694]

I hope this is the correct forum to post this in.

I know that the K2 status is dependent on the K1 status -- ie, if the K1 AOS or ROC is denied, so is the K2, but at what point does the K2 get status in their own right?

Here's the scenario I'm thinking of... K1 and K2 come over. K1 and USC marry and K1/K2 adjust status. 2 years down the road, K1 and K2 remove conditions. Then the K1 dies. What happens to the K2 at that point? Or what (if it's different) what happens if the K1 dies before ROC? Specifically, I'm thinking of a young K2 (under 14).

Does the K2 have to go back to where they came from if there is no more K1 to give them status? Do they have the option of staying in the US and naturalizing after living in the step-parent relationship with the USC after 5 years, even though the K1 (obviously) will not be naturalizing?

I'm a mom of young kids... just trying to make sure I know how all my bases are covered. I'm not planning to get hit by a bus or anything, but you never know... knock on wood.

You are wise to ask and it is something we considered also.

After the ROC when they become an unconditional permanent resident is the "immigration answer". If over age 18 when the K-1 naturalizes they need to wait until they have been a resident for 5 years before applying for their own citizenship. If the child is under 18, an unconditional resident, and the K-1 dies, the child must wait until they have been a resident for 5 years. They would lose any benefits specific to the K-1 holder, which at that point is ONLY the ability to naturalize after 3 years instead of 5.

If under age 18 at the time the K-1 naturalizes they will also automatically naturalize

Bear in mind that immigration status has nothing to do child with custody laws. Entirely a different matter and I would not even hazard a guess on that one. In our case Ukraine allows children of divorced parents over age 16 to choose where they live. Our youngest is now 17 so it would not be an issue for us.

[Gary and Alla 3,694]

Good question, but here is another thing for you to think about.

If something happens to you the kids bio dad gets full custody of them, they would likely never come to remove conditions because they would be back with their father. Now that is if he didn't give up all rights to them. The father or courts grant you permission to move the kids to the US, but it doesn't remove the fathers rights to the kids. It is very sad to think about I was dreading it till my oldest hit 18, it was decided that the kids would live here with their stepfather but if push came to shove the oldest would take custody of the younger ones to keep them away from their father. Well that is if he ever found out. But that is a long story we won't get into.

Custody laws vary and blanket statements cannot be made. The law is also not self-enforcing. The bio father would have to take legal action to recover the children in any case. Custody cannot be discussed with any degree of accuracy except for your OWN case if you have researched it.

[Sandra G. 5,049]

Check your inbox.I just answered your questions.

[aaron2020 11,651]

I hope this is the correct forum to post this in.

I know that the K2 status is dependent on the K1 status -- ie, if the K1 AOS or ROC is denied, so is the K2, but at what point does the K2 get status in their own right?

Here's the scenario I'm thinking of... K1 and K2 come over. K1 and USC marry and K1/K2 adjust status. 2 years down the road, K1 and K2 remove conditions. Then the K1 dies. What happens to the K2 at that point? K2 --> conditional green card --> removes condition becomes regular green card holder --> parent (K1, now regular green card) dies = still a regular green card holder.

Or what (if it's different) what happens if the K1 dies before ROC? K2 --> conditional green card --> parent (K1, now conditional green card) dies = still a conditional green card holder and can remove condition on his/her own after parent dies.

Specifically, I'm thinking of a young K2 (under 14).

Does the K2 have to go back to where they came from if there is no more K1 to give them status? No, the child does not go back. The child can keep his green card status.

Do they have the option of staying in the US and naturalizing after living in the step-parent relationship with the USC after 5 years, even though the K1 (obviously) will not be naturalizing? Child can naturalize after 5 years of having any green card (conditional and regular) and be at least 18 years old.

I'm a mom of young kids... just trying to make sure I know how all my bases are covered. I'm not planning to get hit by a bus or anything, but you never know... knock on wood.

Once the K-2 child gets the conditional green card, the child will not have to return home ever!!!! The child can remove condition alone if the parent dies. The child can naturalize if the parent dies.

Edited April 29, 2012 by aaron2020

[Sandra G. 5,049]

http://www.state.gov/documents/organization/86920.pdf

9 FAM 40.1 N2.2-2 Stepparent/Stepchild Relationships After Termination of Marriage[/u]

(CT:VISA-1000; 09-03-2008)- page 6.

[CAdreamer 14]

Thank you all! Lots of good information here, and it certainly takes a load off my mind. Obviously there are still other aspects to consider, like custody, but it's good to know that the kids wouldn't be ripped away from their stepfather and sent away just because USCIS says so.

Thanks!

[Ontarkie 14,237]

Here's what I've been told from from international family law attorneys on both side of the border.

The father does get custody of his kids automatically according to Canadian Laws, he does not need to go to court to fight for custody rights. They are never taken away from him to begin with, the kids just happen to live with their mother. The court will give him a court order detailing the move of the children. It can be done in a matter of days in some cases even a few hours.

Step parents in Canada do not get rights to step children automatically they must fight for them. Canadian Law has jurisdiction over the kids even while living in the US. All court battles will be fought in Canada. The Hague Convention will come into play here.

Can this be a long drawn out battle? Yes it sure can, but the point is just cause you cross the border the father does not give up anything. It all depends on that original court order.

[CAdreamer 14]

Thanks for the custody details -- especially since Canada specific. Very helpful. I know that their father retains his "rights" to the kids, but I would hope that in the event of something happening to me, the age of the kids, their wishes, and the fact that they have a permanent home in the US with their stepfather (vs moving to be with a man they see a few weeks per year and who hasn't paid any child support in years) would have some weight in the court.

All good information that we can use to be prepared, at least. Thanks for your help.

[Ontarkie 14,237]

I know it sucks, my ex didn't see his kids at all before we moved its been 5 yrs of no contact and never paid any child support still to this day. I wanted to look at all my options too. That's what we do as a parent we want the best for our kids. It really is too bad that no child support and no contact can't be used in our favour the way it can be used here in the US. Arkansas law would let me remove all my ex's right and allow their stepfather to adopt my kids, well that was when they where all younger, but with Canadian law I can't blah. Its a pain in the butt.

The courts will take all that into consideration, it just not a deal breaker.

Edited April 30, 2012 by Ontarkie

[Ban Hammer 13,366]

Check your inbox.I just answered your questions.

while not prohibited by the vj tos, it's best to post advice in open forum where it can be peer reviewed.