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

[Girona40 0]

I have posted this in both the AOS and Fiance forums because this is a HUGE issue that will effect them if the have teenagers, or older, children that are coming with them or "following to join".

I haven't posted on here for some time due to a disagreement with one of the other posters. However, I feel that the news we received this morning is of paramount importance for anyone bringing their sons or daughters into the US on a K-2 visa.

The USCIS took ten months to adjudicate our son's case, by which time he turned 21. In some District Offices this takes even longer. The USCIS sent our case to the Administrative Appeals Office for a "certified" decision. This is a decision that will be applied to ALL K-2's that find themselves in our situation, across the entire USA.

Their decision agreed with the District Office and they too feel that my son was not eligible for AOS because he was over the age of 21 when they got round to adjudicating his case. Bearing in mind the time it takes for background checks to be completed, if anyone has a K-2 son or daughter applying for AOS when they are anywhere near to 21 years old, they will now be denied.

My son is now faced with deportation proceedings, after living here in the USA for three and a half years, having given up everything in the UK. He is effectively being told "Yes, you were entitled to come here, you were entitled to apply for AOS, but you were not entitled to adjust because we took so long processing your paperwork. You are now required to return to your country of origin, the place where you now have nothing!"

Sorry to be the bearer of this news, but this family is devestated and I still can't believe this has happened.

[RandyW 149]

Seems like a big issue for quite a few people. One thing I would like to add, even though I am no where close to being in the situation.

This decision was made by USCIS Administrative Appeals Office. It is still part of USCIS. They might be more apt interpret the law the same way as the district office, especially if they read district office input. If it were me, I would immediately file an appeal with the Board of Immigration Appeals (BIA). They are the highest authority. USCIS must adhere to their decision. The big key is they are seperate from USCIS and DHS being part of the Dept. of Justice. I have read several K-type visa cases where the BIA has overturned the decision USCIS has made, stating they completely mis-interpreted the law.

Information on the BIA:

The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. It is composed of 11 Board Members, including the Chairman and Vice Chairman who share responsibility for Board management. The Board is located at EOIR headquarters in Falls Church, Virginia. Generally, the Board does not conduct courtroom proceedings - it decides appeals by conducting a "paper review" of cases. On rare occasions, however, the Board does hear oral arguments of appealed cases, predominately at headquarters.

The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by District Directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen, or a business firm. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts, and the Board.

Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. All Board decisions are subject to judicial review in the Federal courts. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

http://www.uscis.gov/graphics/lawsregs/biadec.htm

http://www.usdoj.gov/eoir/orginfo.htm

from a friend on the CFL board.

Our son already has his visa, but is still in China will be 21 in Dec. We would very much like to hear more details.