K-1 visa approved, now for AOS for her and her child

[JayT123 0]

My fiancee recently received her K-1 visa so we're now at the step where she will come here to the US. When we filed we listed her son on the I-129F form but he didn't attend the interview or get a K-2 visa, because he is already here in the US on a student visa. When it comes time for doing the Adjust of Status for her, will he be eligible too?

Thanks for any help,

JayT

[Elf 146]

Welcome to the forum!

Is your fiancee's son over 18?

[JayT123 0]

Yes, he is over 18. He's 20 and approaching 21, which we know is a key age in this process.

[TBoneTX 45,845]

Welcome to the forum, and good luck with your situation.

[Elf 146]

18 is also an important age, in that the USCIS definition of "child" includes a stepchild of a USC where the step relationship was created before the child's 18th birthday. I asked how old he was to establish whether for immigration purposes he would qualify as your child after your marriage to his mother.

If he had been under 18, your marriage to his mom would, in the eyes of USCIS, have made him your unmarried minor child and hence eligible to receive an immigrant visa (i.e. green card) immediately regardless of whether his current status was F-1 or K-2.

I'm not certain how his immigration path will be affected by having stayed in the US in F-1 status rather than entering as a K-2. There are plenty of people here who will understand that better than I do, and since whether he is over or under 18 may be a relevant factor, I wanted that information to be available when they see your question.

If you don't get any responses in this forum, I'll move your thread to one where it might be more visible to people with relevant experience.

[Pitaya 2,577]

Welcome to the forum.

[newacct 688]

He will probably need to leave and enter on a K-2 visa to be able to adjust status.

[JayT123 0]

Thanks everyone for the welcomes and the responses.

As some have said above, the fact that he's here on an F-1 vs. a K-2 is an important point and maybe he will have to leave and come back on a K-2, especially because he was over 18 at the time his mother and I established our relationship.

To pose another question then. If he will need to come back on a K-2, where would we start to do that? For his mother it was the I-129F -> USCIS -> NVC -> Guangzhou for the interview and approval. But he missed the opportunity to be there at that interview. Would we have to start over at the I-129F for him, or could we go straight to the interview process in Guangzhou?

[Pitaya 2,577]

Suggest that you start by contacting the US consulate in Guangzhou: http://guangzhou.usembassy-china.org.cn/niv-inquiry-form.html

Good luck on you immigration journey.

~Moved from Intro. Members to China Regional Forum~

~Inquiry is consulate-specific~

~When you get a chance, it helps everyone that uses the forum~

Edited November 16, 2015 by Pitaya

[RandyW 149]

Thanks everyone for the welcomes and the responses.

As some have said above, the fact that he's here on an F-1 vs. a K-2 is an important point and maybe he will have to leave and come back on a K-2, especially because he was over 18 at the time his mother and I established our relationship.

To pose another question then. If he will need to come back on a K-2, where would we start to do that? For his mother it was the I-129F -> USCIS -> NVC -> Guangzhou for the interview and approval. But he missed the opportunity to be there at that interview. Would we have to start over at the I-129F for him, or could we go straight to the interview process in Guangzhou?

He is eligible for a "follow to join" K-2 visa for ONE YEAR after her entry on the K-1.You need to NOTIFY the Consulate that you will be doing this. Check the ustaveldocs.com web site for how to activate his case, and set up an interview appointment.

As K-2, he will NOT need an additional I-130, nor will he need any additional USCIS processing before arrival on the K-2, but he WILL need to interview in Guangzhou.

His K-2 visa will be set to expire on his 21st birthday, or 6 months, whichever is earlier. He must enter before that date in order to adjust status. (Our case came before the courts ruled against the USCIS - they used to - but no longer - DENY cases where the applicant became 21 before they were able to adjust status).

Edited November 17, 2015 by RandyW