K2 AOS at Age 20.96

[RandyW 149]

We got Jingyu's (K-2 arrival on Nov. 30) AOS and EAD applications in the mail yesterday (and I think he already has a job lined up for when he's legal).

For those who didn't keep up earlier, there was a case reported by Girona40 where deportation proceedings were initiated against a K2 for the unforgivable offense of turning 21 while waiting for adjudication of his case.

Well, Jingyu expects to commit the same offense on Dec. 17.

The INA law reads:

Section 245(d)

(d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) (relating to an alien fiancee or fiancé or the minor child of such alien) except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K).

The Washington DC USCIS office interprets the bolded portion to mean that the alien must be a minor (under 21) at the time of the AOS.

Further:

The District Office requested a "certified" decision from the AAO because they felt that these other offices had made a MISTAKE in giving adjustment of status to those over 21 and wanted a decision that would be made "policy" throughout the USCIS, as to how these cases should be processed and the AAO was in agreement with the Washington DC District Director - no eligibility to adjust once they reach the age of 21, whether they had applied for it before they were 21 or not.

Other USCIS offices and lawyers have agreed that the language is simply to refer to the K-2 alien, not to place any restrictions on the case.

But this case is headed for court and hopefully will tie up the "certified" decision from becoming policy (and hopefully be won).

So I listed his immigration status as "Non-immigrant lawfully admitted as the K-2 son of a K-1 fiance" to try to correspond to the 245(d) verbage as much as possible. And I wrote "Please EXPEDITE - Potential Age-out" all over the envelope.

Many thanks to Girona40 and family on VJ, and frank1538 and burnedatbothendswho discussed the situation extensively on CFL

[Girona40 0]

We got Jingyu's (K-2 arrival on Nov. 30) AOS and EAD applications in the mail yesterday (and I think he already has a job lined up for when he's legal).

For those who didn't keep up earlier, there was a case reported by Girona40 where deportation proceedings were initiated against a K2 for the unforgivable offense of turning 21 while waiting for adjudication of his case.

Well, Jingyu expects to commit the same offense on Dec. 17.

The INA law reads:

Section 245(d)

(d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) (relating to an alien fiancee or fiancé or the minor child of such alien) except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K).

The Washington DC USCIS office interprets the bolded portion to mean that the alien must be a minor (under 21) at the time of the AOS.

Further:

The District Office requested a "certified" decision from the AAO because they felt that these other offices had made a MISTAKE in giving adjustment of status to those over 21 and wanted a decision that would be made "policy" throughout the USCIS, as to how these cases should be processed and the AAO was in agreement with the Washington DC District Director - no eligibility to adjust once they reach the age of 21, whether they had applied for it before they were 21 or not.

Other USCIS offices and lawyers have agreed that the language is simply to refer to the K-2 alien, not to place any restrictions on the case.

But this case is headed for court and hopefully will tie up the "certified" decision from becoming policy (and hopefully be won).

So I listed his immigration status as "Non-immigrant lawfully admitted as the K-2 son of a K-1 fiance" to try to correspond to the 245(d) verbage as much as possible. And I wrote "Please EXPEDITE - Potential Age-out" all over the envelope.

Many thanks to Girona40 and family on VJ, and frank1538 and burnedatbothendswho discussed the situation extensively on CFL

Reading over the other motions in California, the argument from the Counsel for the USCIS is claiming that an immigrant visa must be immediately available to the K-2 non-immigrat for them to adjust. But section 245 (a) (iii) says, the immigrant visa must be immediately available at the time they file their I-485".

Hopefully, this K-2's counsel's argument is convincing in this case. His argument is that the K-1 mariage is all that needs to happen, and the K-2 enter before turning 21.

Congratulations on the arrival of your step-son. I hope it all goes smoothly for you and that you hear something very quickly.

Good Luck with everything!

G.

[sarahsmiles 0]

WOW, what a load of #######. Bureaucracy SUCKS! Best of luck and good vibes to you guys. The immigration process is enough to give a person heart disease.

[1HappyGuy 45]

I wish you much luck with this. My wife's son just returned in October on a K-2 after visiting us for two months this summer. We have filed for his AOS and it was received in Chicago November 29th. Now it should be shipped back to California for adjudication. The visa he was given at the embassy was good for 90 days and the embassy personnel said he needed to file for AOS within that 90 day period.

I know that a number of people have stated that once admitted you have a fairly long time in which to file and that the person is just out of status. I would ask, what is the difference between out of status and illegal alien?

Let's not be the ones abusing the system. VJ has been established to help people do it the right way. I think everyone so far is trying to do that. We all just need to deal with the USCIS strange and confusing way of interpreting the laws.

[Girona40 0]

I wish you much luck with this. My wife's son just returned in October on a K-2 after visiting us for two months this summer. We have filed for his AOS and it was received in Chicago November 29th. Now it should be shipped back to California for adjudication. The visa he was given at the embassy was good for 90 days and the embassy personnel said he needed to file for AOS within that 90 day period.

I know that a number of people have stated that once admitted you have a fairly long time in which to file and that the person is just out of status. I would ask, what is the difference between out of status and illegal alien?

Let's not be the ones abusing the system. VJ has been established to help people do it the right way. I think everyone so far is trying to do that. We all just need to deal with the USCIS strange and confusing way of interpreting the laws.

From your photograph, you certainly do look like "One Happy Guy". What a great couple you make!

Is your son close to 21? If not, then he won't have a problem. They can take months to adjudicate a K-2 AOS, but the problem we are having is that our kids are turning 21 during processing. My son did not get his interview until 10 months after filing, during which time he turned 21. This is where the problem arose. The USCIS are saying that the K-2 AOS applicant must be under 21 at the time of ADJUDICATION, but it doesn't actually say that in the statute. Anyway, four years later we are still fighting to keep him here. It is just crazy.

The difference between "out of status" and "illegal" is a big one. You can be out of status if you don't apply for AOS in time, but entered the country legally. You are illegal if you entered illegally. Even though your son's non-immigrant visa was only for 90 days, he will not be "out of status" while awaiting AOS adjudication. He will be in the "status pending" catagory, right up to the point where an immigration judge rules on the case. So, all the time we are appealing this situation my son is still "status pending".

The most annoying thing about this is that the USCIS are interpreting laws that have had amendments made to them, in effect band-aids placed to fix problems as they arise with the statute. It is getting more and more confusing by the minute, not only for the applicant but for the officials also. They don't know how to apply the laws themselves in some cases, such as ours.

Good luck with everything. We are praying that this will be resolved soon. We are awaiting the decision on another case in the hope that it will help ours. If the other case doesn't have a successful outcome then we may just find ourselves in front of an Immigration Judge and faced with financial costs beyond what we ever expected.

Regards

G.

[Girona40 0]

Just a bit disappointed, today, that the case we were waiting to hear on, scheduled for summary judgment on the 11th December, has now been postponed to the 12th February. Two more months of waiting! We were hoping that the outcome of this case, if positive, would help so many people in our situation.

Every day seems like weeks and just waiting for Monday to come round was bad enough.

[rebeccajo 14]

*shakes head*

Sorry to hear that G. Would love to read good news from you...

[Jim_Tanja 1]

I really hope this is resolved well quickly - for everyone.

It is really sad when you are stuck waiting on USCIS and they can't get moving, delaying processing until a problem situation occurs. I think we are going to be in the same situation. The IMBRA law delayed and delayed us, we got stuck in K1 processing in California for months. Now my step-son is going to be turning 21 in January, and the AOS is waiting to be worked on.

Please keep us informed on how things are going, I hope we all hear some positive news!

Just a bit disappointed, today, that the case we were waiting to hear on, scheduled for summary judgment on the 11th December, has now been postponed to the 12th February. Two more months of waiting! We were hoping that the outcome of this case, if positive, would help so many people in our situation.

Every day seems like weeks and just waiting for Monday to come round was bad enough.

[Girona40 0]

*shakes head*

Sorry to hear that G. Would love to read good news from you...

Me too, Becca. Even the courts are backlogged!

[jo&john 1]

Is your son close to 21? If not, then he won't have a problem. They can take months to adjudicate a K-2 AOS, but the problem we are having is that our kids are turning 21 during processing. My son did not get his interview until 10 months after filing, during which time he turned 21. This is where the problem arose. The USCIS are saying that the K-2 AOS applicant must be under 21 at the time of ADJUDICATION, but it doesn't actually say that in the statute. Anyway, four years later we are still fighting to keep him here. It is just crazy.

The difference between "out of status" and "illegal" is a big one. You can be out of status if you don't apply for AOS in time, but entered the country legally. You are illegal if you entered illegally. Even though your son's non-immigrant visa was only for 90 days, he will not be "out of status" while awaiting AOS adjudication. He will be in the "status pending" catagory, right up to the point where an immigration judge rules on the case. So, all the time we are appealing this situation my son is still "status pending".

Hello Girona40,

Thanks for your advise. I put in our application: Request for Expeditious Handling: K2 age-ing out. I also added that we have a Permament Protection Order (Relative to Philippine Republic Act 9262: Anti-Violence Against Women and Their Children Act of 2004) against K2's father. We were accepted to the DORA Program last November 27 and we were interviewed at the same time. Yes, my 2 daughters were interviewed as well as John. Our interview took about 15 minutes. And the lady immigration officer said our documents are perfect. She told us to just wait for our biometrics appointment (to be sent through mail). Then come back to another office for that procedure. The problem would be the delay in the FBI name checks according to the Lady Immigration officer and my daughter might turn 21 by then. She asked us if we believe in prayers? I told her yes. And she told us to pray very hard. I also told her about the Permanent Protection Order. She said she also read every detail of that court decision that's why it took so long for her to call us for our interview. She then explained to my 9 year old that for fingerprinting, she will only have her forefinger to be scanned while her sister and mom will have all ten fingers. This seemed positive for us. I want to be more positive. Since, my daughter was already interviewed, would this mean, she is more or less "safe"?. The Lady Officer also told us that we will be receiving our green cards but that we have to apply for removal of conditions when the time comes since we applied less than 2 years of my marriage to my US Citizen husband.

I am praying for you as well. That everything will go smooth for you and your family. You have helped so many of us here at Visajourney.

Take care and God bless,

Jo

[Girona40 0]

Is your son close to 21? If not, then he won't have a problem. They can take months to adjudicate a K-2 AOS, but the problem we are having is that our kids are turning 21 during processing. My son did not get his interview until 10 months after filing, during which time he turned 21. This is where the problem arose. The USCIS are saying that the K-2 AOS applicant must be under 21 at the time of ADJUDICATION, but it doesn't actually say that in the statute. Anyway, four years later we are still fighting to keep him here. It is just crazy.

The difference between "out of status" and "illegal" is a big one. You can be out of status if you don't apply for AOS in time, but entered the country legally. You are illegal if you entered illegally. Even though your son's non-immigrant visa was only for 90 days, he will not be "out of status" while awaiting AOS adjudication. He will be in the "status pending" catagory, right up to the point where an immigration judge rules on the case. So, all the time we are appealing this situation my son is still "status pending".

Hello Girona40,

Thanks for your advise. I put in our application: Request for Expeditious Handling: K2 age-ing out. I also added that we have a Permament Protection Order (Relative to Philippine Republic Act 9262: Anti-Violence Against Women and Their Children Act of 2004) against K2's father. We were accepted to the DORA Program last November 27 and we were interviewed at the same time. Yes, my 2 daughters were interviewed as well as John. Our interview took about 15 minutes. And the lady immigration officer said our documents are perfect. She told us to just wait for our biometrics appointment (to be sent through mail). Then come back to another office for that procedure. The problem would be the delay in the FBI name checks according to the Lady Immigration officer and my daughter might turn 21 by then. She asked us if we believe in prayers? I told her yes. And she told us to pray very hard. I also told her about the Permanent Protection Order. She said she also read every detail of that court decision that's why it took so long for her to call us for our interview. She then explained to my 9 year old that for fingerprinting, she will only have her forefinger to be scanned while her sister and mom will have all ten fingers. This seemed positive for us. I want to be more positive. Since, my daughter was already interviewed, would this mean, she is more or less "safe"?. The Lady Officer also told us that we will be receiving our green cards but that we have to apply for removal of conditions when the time comes since we applied less than 2 years of my marriage to my US Citizen husband.

I am praying for you as well. That everything will go smooth for you and your family. You have helped so many of us here at Visajourney.

Take care and God bless,

Jo

Hi There Jo!

Whilst the delay with the AOS interview was what caused the problems with my son's case - taking 10 months to schedule it, during which time he turned 21, meant he was an "age-out" in the eyes of the USCIS. Although there is a lot of argument in the Courts at the moment that this is not the case, it is what has caused us a tremendous amount of stress because my son still hasn't been approved - rather they denied him based on his being over 21 at the time of adjudication.

So, the interview itself isn't necessarily the problem, if the FBI background checks can't be completed before the K-2 reaches 21 then they cannot adjudicate them and they will fall into the same trap we are in!

I am guessing that the caseworker is telling you to pray that the FBI background check comes in before your daughter turns 21. But if you look at this site and the others that have been waiting crazy amounts of time for these checks to be completed, it doesn't look hopeful. I wish I could be more positive for you, believe me I do.

The other case in California, which was due for summary judgment on Monday, has been postponed until the 12th February. We weren't expecting that and were counting the days until Monday - now we have to wait another 2 months to see if this particular case will help any of us. If this case wins, then all of us will be in the clear. Even if they lose, the judge may give some insight, in his Opinion, as to how the law should be applied.

I hope everything goes well for you - let us know if your daughter's green card arrives. Fingers crossed!

Hugs

G.

Edited December 7, 2006 by Girona40

[pj1959us 0]

Girona, I'm so sorry that you have to wait yet again!

For the rest just embarking on this precarious slope I wish you the best of luck. We were on pins and needles with Chris (the K-2) because of this very issue and were fortunate to have the process completed "in time". How these situations could have been interpreted this way is truly befuddling.

May all these future decisions be made in your best interests and allow your families to be at ease soon.

[Girona40 0]

Thanks for your concern. I just wish it was over. It seems that so many are going through intolerable stress at the moment, either having been waiting for interview forever, or hanging in for FBI checks that are taking years, or dealing with poor interpretation of the law. It is just crazy that an Immigration Office can even refer to themselves as a "Service".

Jo: I asked the question on another forum, about your daughter's approval. It was as I though, you don't get "approved" until the FBI checks are complete and they tie those up with your file and then give you 100% approval. So, your daughter will be not be "adjudicated" until the FBI checks are complete. I will keep you in my prayers.

[newoption 1]

Walserr and Girona40.

Just want to say that we are praying for both of you to have a happy ending with your cases.

Good luck,

New

[Girona40 0]

Walserr and Girona40.

Just want to say that we are praying for both of you to have a happy ending with your cases.

Good luck,

New

Thank you so much, your prayers are truly welcomed.