K-2's and AAO's decision on adustment

[Girona40 0]

A paragraph contained in our Administrative Appeals Office decision. It says "The applicant is not longer eligible to adjust his status to permanent resident pursuant to his k-2 derivative status, as he reachd age 21 prior to the adjudication of his I-485 application".

Just to clarify...the AOS needs to be ajudicated and approved prior to the K-2 applicant's 21st birthday? I was under the impression (from my attorney) that only the AOS interview had to be held before the K-2's 21st birthday. I really do need to do some research!

[rebeccajo 14]

Glenys, this is terrible....we are devastated for you....

[Girona40 0]

Walserr, you are quite right when you state that the AAO is still part of the USCIS - that's the first thing our attorney said when we called him today to tell him we'd received their Decision.

We are now likely to go to the BIA, after we receive the actual Denial Notice from the USCIS District Office, where all the paperwork has now been sent in order for them to do that.

We recently contacted the Justice Department's, Office of Legal Counsel, to discuss this matter with them - incorrect interpretation of the law - we are waiting to hear back. The Justice Dept. also has an "Immigration Law Research Center" and we contacted them also.

I will certainly make a point of letting everyone know the progress of this, because it will affect so many K-2's applying for AOS.

Thank you for your reply.

Just to clarify...the AOS needs to be ajudicated and approved prior to the K-2 applicant's 21st birthday? I was under the impression (from my attorney) that only the AOS interview had to be held before the K-2's 21st birthday. I really do need to do some research!

Well, until the approval/denial is received then adjudication hasn't taken place.

Personally, I am holding out that my attorney is correct and the only requirement is that the K-1 marries the original petitioner within the specified 90 days. It is even questionable whether or not the K-2's application for AOS has to be made prior to them reaching 21.

We are now going to have to take this to Court - we are not going to lie down and let them do this to us, without a fight!

Some other suggestions

[Girona40 0]

Having spoken with our attorney, it looks like we are going to file a Motion to Reconsider, because the AAO's decision doesn't add up. I am not a legal professional and am often lost in the "banter" back and forth between our attorney and my husband! lol

There are sections quoted throughout the document that just don't apply in this case.

At the end of the document they say that Under Section 291 of the INA the burdon of proof is upon the applicant to establish that he is eligible for adjustment of status - I can't see that at all. Section 291 deals with the burdon of proof being up to the applicant relation to his right of entry into the USA. There is no mention of adjustment of status in this section.

I just don't get it, but we will fight this, not only for us but for every other K-2 that will find themselves in this situation, whether now or in the future.

[pj1959us 0]

Oh, no, Girona, I can't believe it. I am so terribly sorry to hear this latest news.

You submitted the I-130 for your son as a PR, correct? I was reading on another forum about someone that has resided in the US for a visa number to be available for him for a number of years...his number is now due and he is about to be granted his GC. Why wouldn't your son be able to still reside in the US in your current situation (and apply for EADs as needed...which is nonsense in itself, but that's another rant)?

When will you be able to Naturalize? If you were going to do so, wouldn't this alleviate the need to wait for a visa number to be available and expedite the I-130 for your son?

I hope you can find a solution to this situation...it's absolutely ridiculous.

I can't even think I'm so shocked right now.

[Peggy 1]

This is terrible news. I am so sorry to hear this.

If a child is approved for a K-2 then they should be allowd to AOS. This is just crazy to put family's thru this hell.

Its not the family's fault they are backlogged with AOS checks. They dont mind taking the money thou, knowing that this is going to take them so long to approve someone.

[Girona40 0]

I did file an I-130 for my son when I became a permanent resident. It was approved. Unfortunately, there are many years he will have to wait until a visa number becomes available, during which time he has to leave the country and wait outside the US.

I am a citizen and it does not alleviate the wait. My daughter is also a citizen. The USCIS recently sent me a letter saying that the NVC are working on applications made in 1997 for those FP-1's. Although someone mentioned today they are working on 2001, it is still a 5 year wait - outside the country.

He is only here now because his I-485 application is "technically" still pending, even though the AAO have issued their decision. It goes back to the USCIS District Office for them to issue the official Denial Notice.

Oh, no, Girona, I can't believe it. I am so terribly sorry to hear this latest news.

You submitted the I-130 for your son as a PR, correct? I was reading on another forum about someone that has resided in the US for a visa number to be available for him for a number of years...his number is now due and he is about to be granted his GC. Why wouldn't your son be able to still reside in the US in your current situation (and apply for EADs as needed...which is nonsense in itself, but that's another rant)?

When will you be able to Naturalize? If you were going to do so, wouldn't this alleviate the need to wait for a visa number to be available and expedite the I-130 for your son?

I hope you can find a solution to this situation...it's absolutely ridiculous.

I can't even think I'm so shocked right now.

It was particularly bad news because we had built our hopes up that the AAO would see that it makes no sense to afford these kids a K-2 visa and yet not allow them to adjust. The backlogs are not something us applicants have any control over, so why should we be penalised because of them?

In the UK, when an applicant files for anything their age is "frozen" at the time of application. I cannot understand why this simple rule cannot be applied here.

Why would the US government give someone a visa to enter, knowing that the intent is to stay here permanently, and then tell them they are not allowed to stay simply because they didn't process the paperwork before the applicant turned 21?

There are many others about to bring their sons or daughters here, believing they will be allowed to stay here with their parent, when they will be be faced with deportation proceedings when they are not able to adjust in time. It is just ridiculous!

I had to break the news to my son tonight - he took it better than I expected, to be honest. I think the reason for that was he knows we will fight this injustice all the way and I told him that I will never let him return to the UK on his own - we came here as a family and we will return as one, if need be.

This is terrible news. I am so sorry to hear this.

If a child is approved for a K-2 then they should be allowd to AOS. This is just crazy to put family's thru this hell.

Its not the family's fault they are backlogged with AOS checks. They dont mind taking the money thou, knowing that this is going to take them so long to approve someone.

[Peggy 1]

Thats what I dont understand.

If they give the K-2 Visa, then they should be allowd to AOS.

Whats the point in giving them a Visa and letting them adjust to living here, then to turn around and tell someone you have to go home, because you turned 21. Makes no sense to me.

I wish you the best.

I cant imagine what your family is going thru.

[pj1959us 0]

Bless your hearts, you have the strength of Atlas.

From what I have read on the USCIS site and on another forum from one that was awaiting a visa number, I don't understand why he still couldn't remain in the US until the visa immigrant number is available (if it comes to that). What am I missing? And, I thought it does make a difference between PR vs. citizen when applying for a relative?

http://www.uscis.gov/graphics/howdoi/legpermres.htm

http://www.uscis.gov/graphics/howdoi/immvisa.htm

Would he still not be allowed to remain while the original case was being reviewed?

Edited October 29, 2006 by pj1959us

[Girona40 0]

Bless your hearts, you have the strength of Atlas.

From what I have read on the USCIS site and on another forum from one that was awaiting a visa number, I don't understand why he still couldn't remain in the US until the visa immigrant number is available (if it comes to that). What am I missing? And, I thought it does make a difference between PR vs. citizen when applying for a relative?

http://www.uscis.gov/graphics/howdoi/legpermres.htm

http://www.uscis.gov/graphics/howdoi/immvisa.htm

Would he still not be allowed to remain while the original case was being reviewed?

Yes, there is a difference in the Preference Catagory when a sponsor changes from LPR to Citizen, but sometimes that is not always favourable.

Believe it or not, the waiting list for 1st Preference can be longer than 2nd Preference! I guess there are more citizens sponsoring their children on I-130's, I don't know. There is a provision contained within the CSPA for requesting that you do not automatically jump from Preference 2 to Preference 1. However, the CSPA does not cover, or afford its protection, to K-2's. Therefore, my becomming a citizen was something that actually made it worse for my son with regard to his I-130. Ponder that one for a moment!

The problem we also had, at the time I became a citizen, was that I have a daughter who was fast approachng 18. She was entitled to become a citizen, deriving that status from me, so long as she was still under 18. I became a USC because it was a means of saving her another 3 year wait before she could apply for citizenship on her own. At that time, we were hopeful that the USCIS would grant my son's I-485 appliction for AOS, not expecting them to deny him.

Yes, my son can remain in this country while we continue to fight this denial, but think of the restrictions he has in his life because he is not an LPR. He has dealt with that for long enough and now, at the age of 24, he is looking at marriage and getting a mortgage to buy a home, but he is unable to do either. He is afaid to leave the US, in case they refuse to let him back in, if the final decision is still to deny him and he is outside the country when it happens. He worries that he will never see his elderly grandparents again. His life is not as simple as people think, even though he can remain while we fight this and plough yet more money into the government coffers.

[sjoefl01 1]

What is it that prevents him from getting married?

[lostinblue 1,989]

A good discussion on this situation http://candleforlove.com/forums/index.php?...=21084&st=0

[rebeccajo 14]

What is it that prevents him from getting married?

That's what I've been thinking about.

I knew Michael had a girl, but I didn't know if they were ready for marriage. If he's ready to take that leap, why not just do it and adjust from that standpoint? He sure didn't come over here on Glenys coattails with intent to marry.....

Have you discussed this with your lawyer?

Edited October 29, 2006 by rebeccajo

[Girona40 0]

My son is now 24 years old and has been going out with the same girl for a year and a half. They have talked about marriage, but I don't think my son is quite ready. His girlfriend has hinted at marriage, but he feels that he doesn't want to marry until his AOS is approved. He told me that he doesn't ever want her to think he married her for anything other than love.

When the USCIS called me the other day, in response to a letter someone who worked at the White House got to the Office of the President, they told me "whatever he does, don't let him get married - he wouldn't be eligible to adjust then because he can't adjust from anything other than a K-2". Whether this is correct or not isn't really something I wanted to get into with them.

I have seen that my posts on VJ have been quoted on other websites so I am going to hold off posting anything for a while because I don't want to scare anyone else bringing in a K-2 child, close to the age of 21.

One particular post, on another site, mentioned that they weren't sure whether or not the AAO's Decision in this case was going to be applied to ALL K-2's or not. All I can say about that is that when we met with the District Director of Immigration back in February she told us that because the law was "unclear" and other Districts had applied "the law" differently, she would send this to the AAO for a Decision and their Decision would then be applied across the country - so that all offices were "on the same page" when it came to adjudication of K-2's who reached the age of 21 during processing. Whether they will actually do this, or how long it will take for them to do this, I don't know. This is just what the District Director told us.

The cost factor in all this is likely to be huge and one we never expected to have to budget for, but we will manage. This is an interpretation of law issue and one that needs to be clarified. If we have to go to the BIA then so be it, but we will certainly explore every other avenue first.

Anyway, we are now going to take the advice of our attorney and go from there.

Thanks for all your input and understanding.

G.

[sjoefl01 1]

It's pretty honorable of your son not to want to marry under pretenses that could be construed as less than honorable. Having said that it would be insane for him not to take the easy route and have this all behind. Why would anybody put themselves through all of this ####### when they have an easy ticket out.

I am sorry but I still don't see why the supreme court would need to be called for a case that can be so easily resolved. Tell your son to marry the girl and get on with his life. The drama makes no sense.