Difficulties adjusting K1 and K2 status smiltaneously

[Le Bangoulap 25]

Hi!

After our AOS case (k1 & K2) was rejected for insufficient fund, we want to adjust the k1 for now then do the K2 at a later date. Is there any risk to that? please your suggestions!

Thank you

[Pitaya 2,577]

I am not aware of any specific risk. However, depending on the age of the K2, I would encourage you to do the K2 AOS as soon as possible. Depending in the age of the child (not specified), it may be a factor later on in the immigration process. You need to provide more information in order to give a more focused response.

[Ian H. 207]

If you are talking about not meeting the poverty level requirements, I think the K2 would still have to be counted as part of your household because he is your dependent. If you are referring to not having money for the fee, I'm not sure how it would affect the child if his AOS isn't done now.

[Ian H. 207]

Also the fee for the child would be the full amount if filed separately.

[Pitaya 2,577]

Also the fee for the child would be the full amount if filed separately.

That is not necessarily correct. The AOS fee for a K2 child is dependent on the age of the child: http://www.uscis.gov/i-485

The child will not be able to obtain a SSN without either an EAD or 2-year conditional Green Card. That may inhibit them from inclusion in state programs. Each state is different, you will have to check for details.

[Ian H. 207]

Um...I never said it wasn't. The fee for the K2 would still be the full amount regardless of age if filed separately.

That is not necessarily correct. The AOS fee for a K2 child is dependent on the age of the child: http://www.uscis.gov/i-485

The child will not be able to obtain a SSN without either an EAD or 2-year conditional Green Card. That may inhibit them from inclusion in state programs. Each state is different, you will have to check for details.

[LORIEandPHIL 123]

That is not necessarily correct. The AOS fee for a K2 child is dependent on the age of the child: http://www.uscis.gov/i-485

The child will not be able to obtain a SSN without either an EAD or 2-year conditional Green Card. That may inhibit them from inclusion in state programs. Each state is different, you will have to check for details.

As already stated, the fee would be the full amount regardless of age IF FILED SEPARATELY.

Read more post less, good advice you have on your posts.

[KayDeeCee 4,893]

I am not aware of any specific risk. However, depending on the age of the K2, I would encourage you to do the K2 AOS as soon as possible. Depending in the age of the child (not specified), it may be a factor later on in the immigration process. You need to provide more information in order to give a more focused response.

Age is not a factor. A K-2 does not age out as far as filing for AOS is concerned. As long as they entered the US before they were 21 with a K-2, it doesn't matter how old they are when they file for AOS.

OP > It is cheaper to file for AOS together, if the child is under 14.

[Ian H. 207]

I beg to differ. AOS has to be filed before the child turns 21, otherwise he/she wouldn't be eligible for AOS as a K2. The CSPA wouldn't apply to a K2 without a pending I-130.

Other Considerations 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).

K-2/K-4 Adjustment of Status as the Step-Child of the U.S. Citizen & CSPA

In 2002, Congress passed the Child Status Protection Act of 2002 to permit an applicant for certain immigration benefits to retain the classification as a "child" under Section 101(b)(1) of the INA even if he or she reaches the age of 21. For more information, please see “Child Status Protection Act” link to the left under “Green Card Processes & Procedures.”

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/green-card/green-card-through-family/green-card-through-special-categories-family/k-nonimmigrant

Age is not a factor. A K-2 does not age out as far as filing for AOS is concerned. As long as they entered the US before they were 21 with a K-2, it doesn't matter how old they are when they file for AOS.

OP > It is cheaper to file for AOS together, if the child is under 14.

[aaron2020 11,651]

I beg to differ. AOS has to be filed before the child turns 21, otherwise he/she wouldn't be eligible for AOS as a K2. The CSPA wouldn't apply to a K2 without a pending I-130.

Other Considerations 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). K-2/K-4 Adjustment of Status as the Step-Child of the U.S. Citizen & CSPA

In 2002, Congress passed the Child Status Protection Act of 2002 to permit an applicant for certain immigration benefits to retain the classification as a "child" under Section 101(b)(1) of the INA even if he or she reaches the age of 21. For more information, please see Child Status Protection Act link to the left under Green Card Processes & Procedures. 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-2s 21st birthday
• Submitting all required documentation and paying the required fees associated with Forms I-130 and I-485

http://www.uscis.gov/green-card/green-card-through-family/green-card-through-special-categories-family/k-nonimmigrant

You may want to update your info.

http://www.visajourney.com/forums/topic/347168-k2-over-aged/

The law allows a K-2 who enters the US before turning 21 to file to adjust after turning 21.

[Ian H. 207]

Oh, that's good. Disregard my previous post, and in my defense I quoted it directly from USCIS. They need to update that.

You may want to update your info.

http://www.visajourney.com/forums/topic/347168-k2-over-aged/

The law allows a K-2 who enters the US before turning 21 to file to adjust after turning 21.

[KayDeeCee 4,893]

I beg to differ. AOS has to be filed before the child turns 21, otherwise he/she wouldn't be eligible for AOS as a K2. The CSPA wouldn't apply to a K2 without a pending I-130.

...

Oh, that's good. Disregard my previous post, and in my defense I quoted it directly from USCIS. They need to update that.

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa.

http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf

Question 1a: What guidance has USCIS issued to field offices for processing K-1 adjustment of status applications as a result of the BIA decisions in Matter of Le and Matter of Sesay (AILA Doc. Nos. 11062465 & 11032262)?1

Response:

USCIS has drafted guidance related to Matter of Le and Matter of Sesay. This guidance is currently undergoing internal review and should be issued soon.

On March 17, 2011, the BIA issued Matter of Sesay, in which it concluded that there is no requirement that a K-1 fiancé(e)’s marriage to the I-129F petitioner remain intact in order for the K-1 to adjust status.

On June 23, 2011, the BIA issued Matter of Le, in which it cited Sesay and ruled that there is no requirement that a K-2 remain under 21 years of age in order for the K-2 to adjust status.

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/March%202012/AILA_Field_Ops_32112_Cleared.pdf

Question 12a: Please advise as to the status of the guidance on Matter of Le and Matter of Sesay.

Response: Guidance addressing the decisions in Matter of Sesay and Matter of Le is currently under development.

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/October%202012/AILA-Liaison-Committee-meetingQA.pdf

[Ian H. 207]

Yeah, as I stated before, please disregard my previous post. I will try to contact USCIS to update the info on their site since it's still reflecting the incorrect info.

Of course, I'm not sure if that would help though, I contacted them a while ago to correct a huge mistake regarding derivative status of family of LPR's on the I-130 instructions, and they haven't cared to fix it.

[KayDeeCee 4,893]

They won't. That guidance/updating has been in the works for years. They are slow.

[mik2012 17]

Correct,

my wife and our oldest just got there green cards in July.

When we went to the office for interview they clearly stated with the other 3 we did not need to rush to get there green cards, due to their ages, 6, 13 & 16. She did state that they needed to be adjusted before they were 21. They just wanted to verify they were in the country.

Edited September 15, 2014 by mik2012