K2 and AOS

[LibCampFireClub 635]

It's my understanding that the US has relaxed the age-out law for K2 applicants. before 2012, the USCIS took a harder stance against K2 applicants who turned 21 before they were able to adjust status. However, there are a number of court cases won by K2's who entered the US via their parent's K1 visa before their 21st birthday. I wonder whether any of our members have experience with a K2 applicant who entered the US on a K-visa before turning 21, and then turned 21 before AOS was approved.

It's my understanding that a K2 age is considered "frozen" as of the date of first entry to the US on K-visa and they are allowed to adjust status even if they turn 21 before an AOS petition is adjudicated.

[Pitaya 2,577]

That was my impression also. The sticky thread at the top of the forum page, Calling all K-1 AOSers - past and present..., has some gold in it around page 8. I haven't heard from Jim Va Phuong, or Gary and Alla in quite awhile, they were the resident experts. Jim's post and link on page 8, http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf

still seem to be valid. Is anyone aware of a more recent ruling?

HTH.

[Hypnos 6,576]

Per Matter of Le (http://www.legalactioncenter.org/sites/default/files/docs/lac/Matter-of-Le-Decision-6-23-2011.pdf) K-2s do not age out, ever, provided they initially entered the US before they turned 21 and the principal K-1 married their US citizen petitioner within 90 days of entry.

Edited May 25, 2014 by Hypnos

[RandyW 149]

I'll repeat my response to you on CFL here for the benefit of any VJ'er. As far as aging out, the only requirements are that the K-2 visa must be USED before the 21st birthday, and then that Adjustment of Status must be applied for within a reasonable time frame (usually six months, to a year - similar to the K-1).

New K-2 Ruling - As of June 28, 2011, the Board of Immigration Appeals (BIA) has ruled on the K-2 issue - the finding is that the INA as amended by the IMFA does not specify a point at which the age of the K-2 visa holder should be determined. The BIA referenced prior law to come to the conclusion that the date that should be used is the date of admission to the US. The USCIS has acknowledged the ramifications of this ruling in a court briefing filed on June 28, 2011.

Under the ruling, a K-2 visa holder admitted to the United States before his 21st birthday IS eligible to adjust status, and may not be ruled ineligible on the basis of having attained his/her 21st birthday.

Looks like this was the ruling that cemented the new policy - http://www.justice.g.../vol25/3719.pdf

Matter of Hieu Trung LE, Respondent
Decided June 23, 2011

I-129F for fiancé(e) - K-2 visas may be issued to the qualified children of a K-1 fiance up to the age of 21. The INA requires that the K-2 apply for AOS before reaching the age of 21. The USCIS has added an additional requirement – that the K-2 must be under age 22 at the time of adjudication. A few years ago, this requirement did not exist, and several K-2's over the age of 21 were allowed to adjust status. That seems to no longer be the case.

As of June 28, 2011, the USCIS is bound by a new BIA ruling - see New K-2 Ruling above - which allows adjustment of K-2's who were admitted before their 21st birthday.

For a K-2 above the age of 18 at the time the marriage occurs, it is not possible to protect his or her status by filing an I-130. Therefore, the Child Status Protection Act does not apply. The American citizen can file an I-130 only for step-children who were age 18 or under at the time of marriage.

The argument of the USCIS that the K-2 cannot adjust status over the age of 21 boiled down to a single clause in the INA "The attorney-general shall NOT adjust the status to legal permanent resident EXCEPT for . . . the child of a K-1 fiance". They (formerly) maintained that the word "child" means that the K-2 must be a child (20 or younger at the time of adjudication, never mind the fact that the fiancé is no longer a fiancé. This language was introduced after the Immigration Marriage Fraud Amendment (IMFA) of 1986.

Prior to the IMFA, K-2's would be "automatically" adjusted upon the marriage of the K-1 fiance to the USC petitioner. The K-2 recipient had been required to demonstrate that the age 21 requirement had been met at the time the visa was issued. No further requirement was imposed and the adjustment of status was automatic. The IMFA introduced the requirement that K-1's and K-2's must apply to adjust status. The amendment did NOT include any requirement as to the age of the K-2 visa holder.

As defined in the INA: Child: Unmarried child under the age of 21 years. This status is required at the time of visa issuance, but is not mentioned as a requirement to adjust status.





In a memorandum issued on March 15, 2007, however, the Associate Director for U.S.C.I.S. Domestic Operations stated:
The Immigration and Marriage Fraud Amendments of 1986 created a gap regarding the procedure for a K-2 alien to adjust status to that of a person admitted for permanent residence. The agency has filled the gap with the controlling regulation at 8 CFR 214.2(k)(6)(ii), which reads:

Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.
, 245(d) is not a general description of the eligibility of K-1s and K-2s for adjustment of status; its purpose is to place a specific restriction on their adjustment, limiting it to adjustment via the K-1's marriage to the U.S. citizen fiancé petitioner. Moreover, "minor child" in this provision refers back to "a nonimmigrant alien described in section 101(a)(15)(K)" and at the time of receiving the "K" nonimmigrant visa, as well as at the time of admission as a K-2, the alien would have been a "child."




Check American Families United at http://www.americanfamiliesunited.org/ for up to date information on actions concerning Family Unification.

"Obeying the law while having birthdays should not be a deportable offense"

This court case was won on the grounds that the child is required to demonstrate that he/she is under the age of 21 at the time of visa issuance, not at the time of adjudication of adjustment of status. "Because the INA no longer contains a provision explaining how a K-2 child is to obtain permanent resident status, its text does not directly address this issue. Accordingly, it is instructive to look at the age requirement as it existed before Congress inadvertently eliminated the procedure by which K-2 visa holders could obtain permanent resident status."

Prior to the enactment of the IMFA (which "inadvertently eliminated the procedure by which K-2 visa holders could obtain permanent resident status"), a K-2 visa holder "would have had to demonstrate that he was under twenty-one when he applied for a K-2 visa. However, after he entered the United States, his status would have been adjusted to that of lawful permanent resident automatically once his mother's marriage was concluded. There is no indication that, prior to the IMFA, the Immigration and Naturalization Service considered whether K-2 applicants were still under twenty-one at the time their status was to be adjusted.

And, of course, the IMFA introduced no such requirement.



http://www.rreeves.c...on_en_10607.php

The USCIS seems to have acquiesced to the BIA ruling, and is now allowing K-2's to adjust status, provided they were admitted to the country before their 21st birthday.

Edited by RandyW, 26 July 2012 - 05:32 AM.

[RandyW 149]

It's my understanding that the US has relaxed the age-out law for K2 applicants. before 2012, the USCIS took a harder stance against K2 applicants who turned 21 before they were able to adjust status. However, there are a number of court cases won by K2's who entered the US via their parent's K1 visa before their 21st birthday. I wonder whether any of our members have experience with a K2 applicant who entered the US on a K-visa before turning 21, and then turned 21 before AOS was approved.

It's my understanding that a K2 age is considered "frozen" as of the date of first entry to the US on K-visa and they are allowed to adjust status even if they turn 21 before an AOS petition is adjudicated.

BUT - what needs emphasis here - is that THE LAW NEVER CHANGED. There NEVER HAS BEEN an age limit in the INA on Adjustment of Status by K-2's.

For several years (around 2007 to 2011), it was a POLICY of the USCIS to restrict adjudication of AOS applications to those K-2's under the age of 21.

This policy was based on wording added to the INA based on the IMFA which referred to the K-2 as the "CHILD of a fiance(e)".

The court rulings referred to in my post forced the USCIS to reconsider their policy.

Edited May 26, 2014 by RandyW

[Darnell 8,478]

ExExpat - you can get some speed at GUZ IV if you email them with the webform thingie and ask for expedited scheduling... citing 'possible K-2 age-out'... This has worked before with great success.

[LibCampFireClub 635]

ExExpat - you can get some speed at GUZ IV if you email them with the webform thingie and ask for expedited scheduling... citing 'possible K-2 age-out'... This has worked before with great success.

Thanks for the tip Darnell. I've heard this from others. Do I need to wait until she receives the P3 before asking for an expedited interview? She should be receiving that P3 any day now as the NVC indicates the package was sent to GZ on May 16?

[Darnell 8,478]

No - since it left NVC - ask now and often (yes - you'd be repeating yerself every 3 days] . Tick Tock and Tempus Fugit.

[RandyW 149]

We were even able to TELL them when we wanted to interview - this was in the days (2006) when the consulate did all the interview scheduling.

Yes - "Please Expedite - Potential Age-out" will work wonders. Ironically, though, they used that wording against us in court - as if it were evidence that we knew all along of the "potential age-out"