Son of permanent resident aging out?

[aaron2020 11,651]

Special Considerations When Seeking Adjustment of Status as a K-2

The Section 101(b)(1) of the Immigration and Nationality Act defines a "child" as "an unmarried person under twenty-one years of age." Generally, a K-2 can seek adjustment of status as the minor child of a K-1. Therefore, if the K-2 adjusts status based on the K-1's adjustment, then the K-2 can only adjust status prior to his or her 21st birthday. Several recent developments may impact a K-2s ability to seek adjustment beyond the age of 21.

If you should attain the age of 21 years while your Form I-485 is pending, you may be covered under the Child Status Protection Act of 2002 (CSPA) (see information below).

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

CSPA has nothing to do with the K-2.

[bca94 0]

You are misunderstanding the K-2 visa.

You can enter on the K-2 and adjust status with your mother as long as you enter the US before age 21. It is not age 18. You are not understanding the special rule for the K-2.

If mom gets the K1, then you can get the K-2. When you enter on the K-2, you can adjust your status to a conditional green card holder with your mom. It's okay that you are over 18. As long as you are under 21 when you enter on the K-2, you can adjust.

Here's the link of the instructions for form I-130 from USCIS

http://www.uscis.gov/files/form/i-130instr.pdf

There's a part that says "Who May Not File Form I-130", which describes as "You may not file for a person in the following categories."

In point 3 it says the next:

·A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

I'm not a native English speaker but if I'm not wrong, if my mother marries her U.S. citizen fiance, according to what it says it means that I won't be able to adjust status since I am already 18.

[Reyan 56]

CSPA has nothing to do with the K-2.

Limited CSPA Coverage for K-2s

An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday.

Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).

Exercising this option requires:

An existing parent-child relationship between the U.S. citizen petitioner and the K-2 nonimmigrant

Filing of Form I-130 prior to the K-2’s 21st birthday

Submitting all required documentation and paying the required fees associated with Forms I-130 and I-485

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

[Reyan 56]

Here's the link of the instructions for form I-130 from USCIS

http://www.uscis.gov/files/form/i-130instr.pdf

There's a part that says "Who May Not File Form I-130", which describes as "You may not file for a person in the following categories."

In point 3 it says the next:

·A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

I'm not a native English speaker but if I'm not wrong, if my mother marries her U.S. citizen fiance, according to what it says it means that I won't be able to adjust status since I am already 18.

If your mom goes through the K1 & K2 route there is no need to worry about the I-130.

[immius 0]

,

Edited December 21, 2012 by immius

[aaron2020 11,651]

Here's the link of the instructions for form I-130 from USCIS

http://www.uscis.gov/files/form/i-130instr.pdf

There's a part that says "Who May Not File Form I-130", which describes as "You may not file for a person in the following categories."

In point 3 it says the next:

·A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

I'm not a native English speaker but if I'm not wrong, if my mother marries her U.S. citizen fiance, according to what it says it means that I won't be able to adjust status since I am already 18.

No one is filing an I-130.

Your mother's fiance files an I-129f. This is for the K-1. You get to be her K-2 derivative. As long as you arrive in the US before age 21, you can adjust with her to get a conditional green card.

There is no I-130.

[aaron2020 11,651]

Limited CSPA Coverage for K-2s

An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday.

Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).

Exercising this option requires:

An existing parent-child relationship between the U.S. citizen petitioner and the K-2 nonimmigrant

Filing of Form I-130 prior to the K-2’s 21st birthday

Submitting all required documentation and paying the required fees associated with Forms I-130 and I-485

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

What does the I-130 have to do with a K-2 visa? Nothing here. The OP is 18 years old. He is not close to 21 so that narrow provision where he does not adjust with his mother is moot. Furtermore, the I-130 is not involved in the K-2.

Where are you getting this stuff? None of what you say make any sense.

The situation is VERY SIMPLE. YOU ARE MAKING IT COMPLICATED by bringing up something that rarely happens and is not relevant to the OP. Please stop presenting this.

Edited December 21, 2012 by aaron2020

[aaron2020 11,651]

Okay. This is very simple. I will explain it once more. If you need more information, then look it up.

First, the OP's mother should NOT get marry in the US now. If she gets marry now and adjust, her son cannot immigrate to the US for at least 8 years.

Second, the best path for mother and son to immigrate to the US together (the only option) is the K-1 and K-2 visa process. Mother will need to return home unmarried. Her US citizen fiance petitions for her by filing the I-129f. Her 18 years old is a K-2 derivative of his mother. They come to the US. After mother marries the US citizen, they file for conditional green cards for both the mother and son.

AS LONG AS THE K-2 HOLDER ENTERS THE US BEFORE HIS 21st BIRTHDAY, HE CAN ADJUST TO GET A CONDITIONAL GREEN CARD IF HIS MOTHER, THE K-1, GETS A CONDITIONAL GREEN CARD. I don't know why you resist by bringing up age 18.

AGE 18 DOES NOT MATTER WITH THE I-129f and K-2. AGE 18 MATTERS WITH THE I-130. BUT HERE, NO ONE FILES THE I-130 BECAUSE IT IS NOT NECESSARY.

CSPA DOES NOT MATTER.

THE I-130 DOES NOT MATTER.

ONLY THE I-129F AND K-2 RULES MATTERS.

Edited December 21, 2012 by aaron2020

[Reyan 56]

I'm posting my information directly from USCIS, so quit being an #### about where I get my "stuff". I highlighted the section that pertains to the OP about the age issue. Your eyes just stuck on the CSPA section for some strange reason, when I never highlighted it.

[aaron2020 11,651]

I'm posting my information directly from USCIS, so quit being an #### about where I get my "stuff". I highlighted the section that pertains to the OP about the age issue. Your eyes just stuck on the CSPA section for some strange reason, when I never highlighted it.

Now ask yourself if the information is relevant in this situation. The answer is no. It has nothing to do with the OP. It doesn't help him. It only will confuse him because it applies to a very narrow set of K-2s - those who turn 21 after entering on the K-2.

Why point the OP in the direction of information that will not help him and will only confuse him? Isn't he confused enough?

Since you so strongly disagree with me, please tell me how your information helps the 18 years old potential K-2? What does the I-130 and CSPA have to do with a simple K-2 where aging out is not a problem?

Edited December 21, 2012 by aaron2020

[Reyan 56]

I'll agree that I shouldn't have posted additional information about CSPA. In retrospect, I shouldn't have replyed at all when you mentioned CSPA since that was not my intent for the OP (I bolded the section that was important). Oh well.

Sorry OP if you happen to get drawn in on the CSPA piece, it was not my intent. Whether right or wrong, I was annoyed at your comment on where I got my stuff. I shouldn't have taken it personally, for that I apologize.

[NigeriaorBust 4,087]

Key question does the mother have unlawful presence in the US ( overstay ? ) if so a waiver might mess up the k1/k2 plan

[aaron2020 11,651]

Key question does the mother have unlawful presence in the US ( overstay ? ) if so a waiver might mess up the k1/k2 plan

This is highly speculative since the OP has only mentioned that his Spanish mother is currently in the US. The OP has provided no information that indicates she is here illegally.

[bca94 0]

You are misunderstanding the K-2 visa.

You can enter on the K-2 and adjust status with your mother as long as you enter the US before age 21. It is not age 18. You are not understanding the special rule for the K-2.

If mom gets the K1, then you can get the K-2. When you enter on the K-2, you can adjust your status to a conditional green card holder with your mom. It's okay that you are over 18. As long as you are under 21 when you enter on the K-2, you can adjust.

You are right. I searched information about what you were referring to:

http://richardbracken.com/k2-visa-tips-for-children-of-alien-fiances/

And what you're saying is right. K-2 visa holders can adjust status after the K-1 visa parent gets married to the U.S. citizen as long as they are under 21 years of age.

And USCIS confirming what you are saying:

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/k2adjuststatus031507.pdf

So that means that I can still go to the U.S. and adjust status.

Edited December 22, 2012 by bca94

[bca94 0]

And no, my mother isn't staying illegally in the U.S. She has traveled to the U.S. with the VWP to spend Christmas vacation with the family.

Edited December 22, 2012 by bca94