We Are Finally In Guam!

[Hank_ 9,174]

Thanks, Hank! I am just confused after reading that AOS should be filed before the child turns 21. My son will be 21 years old on Monday, Jan. 25, so when I file for the AOS, USCIS will only recieve the application after he turns 21. That is why I have to ask again. Will my son be ok? We arrived in Guam last January 12, got married yesterday (civil wedding), Jan 21. We did not have enough time to file for the AOS early.

As a K-2? No, a K2 can only adjust status if under 21 years of age. That is why I highlighted the section I did regarding filing the I-130 (husband will file this for the son) at the same time as the I-485 for your son. It "might" fix the issue... might.

Edited January 22, 2016 by Hank_

[Mydy 80]

Hi Hank,

Thank you so much!

I am now preparing for the AOS and the I-130 (just making sure). Should I write my married name at the form?

[Hank_ 9,174]

Hi Hank,

Thank you so much!

I am now preparing for the AOS and the I-130 (just making sure). Should I write my married name at the form?

Yes complete all your forms in your married name.

Anything you sign should have your married name, not just for AOS.

[F & J 21]

Here's another thread that covers this issue!

http://www.visajourney.com/forums/topic/415436-k2-out-of-status-help-help-help/

And direct link to the USCIS K Nonimmigrant page:

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

If You are Present in the United States as K-2, the Minor Child of a K-1 Fiance(e)

You should seek adjustment of status at the same time as your parent (K-1) since your reason to adjust, in general, depends on your parent's eligibility to adjust.

Also, here's a direct link to the ruling that they referenced in that thread:

http://blog.mikebakerlaw.com/2011/07/bia-addresses-k-2-age-out-eligibility.html

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the INA 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. Matter of Le, 25 I&N Dec. 541 (BIA 2011)

* The link to the case appears to be broken now - found it by Googling - http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3719.pdf

So your son should remain eligible based on your K-1 eligibility since he entered the U.S. before he turned 21.

Edited January 25, 2016 by F & J

[Hank_ 9,174]

Here's another thread that covers this issue!

http://www.visajourney.com/forums/topic/415436-k2-out-of-status-help-help-help/

And direct link to the USCIS K Nonimmigrant page:

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

If You are Present in the United States as K-2, the Minor Child of a K-1 Fiance(e)

You should seek adjustment of status at the same time as your parent (K-1) since your reason to adjust, in general, depends on your parent's eligibility to adjust.

Also, here's a direct link to the ruling that they referenced in that thread:

http://blog.mikebakerlaw.com/2011/07/bia-addresses-k-2-age-out-eligibility.html

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the INA 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. Matter of Le, 25 I&N Dec. 541 (BIA 2011)

* The link to the case appears to be broken now - found it by Googling - http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3719.pdf

So your son should remain eligible based on your K-1 eligibility since he entered the U.S. before he turned 21.

Not true.

This from the USCIS website, link provided below.

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.

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. Thus the suggestion by USCIS to include the I-130 petition along with the I-485, as a way to side step this issue.

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

[F & J 21]

Not true.

This from the USCIS website, link provided below.

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.

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. Thus the suggestion by USCIS to include the I-130 petition along with the I-485, as a way to side step this issue.

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

Thanks Hank! I just read a little bit more about the case that was linked in that thread... I got a little confused after reading it but that blog explained it as:

The Board’s long-awaited ruling favorably resolves the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. when under age 21, is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States.

http://blog.mikebakerlaw.com/2011/07/bia-addresses-k-2-age-out-eligibility.html

Unfortunately, this isn't specified anywhere on the USCIS website (that I know of - no actual USCIS change in policy) so it still seems like a bit of a gray area but at least there's a precedent for it. And after reading the case file from the justice.gov website, it looks like the K2 did adjust status BEFORE they turned 21 but the Adjustment of Status was adjudicated AFTER they turned 21, after which they were deemed ineligible and placed in removal proceedings Basically the case specifically covered the requirement that the K2 had to be under 21 by the time AOS was adjudicated but it doesn't cover the issue if you apply for adjustment of status AFTER turning 21. Maybe in this case they will consider the age of the K2 fixed to the age at time of admission to the U.S. like they did with the mentioned case. Hopefully someone who has a similar experience can provide more insight.

Either way, the I-130 does seem to be the best way to go!

Edited January 26, 2016 by F & J

[Greenbaum 12,259]

This has been an ongoing debate from many different Government entities and from the Immigration Courts for many years. I have a 21 yo that in March 2016 she will adjust her status [ROC] and from what I have read and the lawyers I have talked to, your statement that they fall under their mother's K-1 as long as they were on US soil prior to their 21st birthday (the age becomes fixed) they are eligible to apply for AOS & ROC.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act/child-status-protection-act-cspa

Edited January 26, 2016 by Greenbaum

[Hank_ 9,174]

This has been an ongoing debate from many different Government entities and from the Immigration Courts for many years. I have a 21 yo that in March 2016 she will adjust her status [ROC] and from what I have read and the lawyers I have talked to, your statement that they fall under their mother's K-1 as long as they were on US soil prior to their 21st birthday (the age becomes fixed) they are eligible to apply for AOS & ROC.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act/child-status-protection-act-cspa

ROC isn't a problem after age 21.

Thanks Hank! I just read a little bit more about the case that was linked in that thread... I got a little confused after reading it but that blog explained it as:

The Board’s long-awaited ruling favorably resolves the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. when under age 21, is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States.

http://blog.mikebakerlaw.com/2011/07/bia-addresses-k-2-age-out-eligibility.html

Unfortunately, this isn't specified anywhere on the USCIS website (that I know of - no actual USCIS change in policy) so it still seems like a bit of a gray area but at least there's a precedent for it. And after reading the case file from the justice.gov website, it looks like the K2 did adjust status BEFORE they turned 21 but the Adjustment of Status was adjudicated AFTER they turned 21, after which they were deemed ineligible and placed in removal proceedings Basically the case specifically covered the requirement that the K2 had to be under 21 by the time AOS was adjudicated but it doesn't cover the issue if you apply for adjustment of status AFTER turning 21. Maybe in this case they will consider the age of the K2 fixed to the age at time of admission to the U.S. like they did with the mentioned case. Hopefully someone who has a similar experience can provide more insight.

Either way, the I-130 does seem to be the best way to go!

Yes, the USCIS suggests doing the I-130 in cases where the K-2 is over 21. Hopefully it will cover this age issue so there is no problem adjusting status.

[Greenbaum 12,259]

Hank_, on 25 Jan 2016 - 10:41 PM, said:

ROC isn't a problem after age 21.

Yes, the USCIS suggests doing the I-130 in cases where the K-2 is over 21. Hopefully it will cover this age issue so there is no problem adjusting status.

Yup, I knew that.

[Mydy 80]

So should we fill up the i-485 and the i-130 for my son?

[Hank_ 9,174]

So should we fill up the i-485 and the i-130 for my son?

If you want a change of him adjusting status and not being sent back to the Philippines... Yes submit the I-130 application (with fees) along with the I-485 (and fees), just as USCIS suggests in the link I gave you earlier.

[Darnell 8,478]

whoa - no k-2 ftj case , visa fee paid recently, interview schedule handled on the self-schedule thingie ?

what's up ?

[Darnell 8,478]

Hi Darnell,

My son is already here in Guam.

ok.

if he arrived on a k-2 visa, then he will follow guide1 in the Guides section.

if other visa used for arrival, then he will follow guide2 in the Guides section.

[Darnell 8,478]

Thanks, Hank! I am just confused after reading that AOS should be filed before the child turns 21. My son will be 21 years old on Monday, Jan. 25, so when I file for the AOS, USCIS will only recieve the application after he turns 21. That is why I have to ask again. Will my son be ok? We arrived in Guam last January 12, got married yesterday (civil wedding), Jan 21. We did not have enough time to file for the AOS early.

another user, Randy W, tracks this stuff and is current. See if you can find his posts with the 'advanced search tool', when logged in from a PC.

[Mydy 80]

Hi all!

Earlier this week, we went to the local USCIS office here and when we explained the issue, the nice immigration officer told us that she needs to call me back because she admitted that this is the first time they encounter such case here in Guam. Probably she has to acquire more info from the mainland office on how to file the AOS when the child turns 21 before filing the adjustment. She, however, provided us forms and said that we also need to get a police clearance from Guam Police Department. Also, we need to see a USCIS accredited doctor to request for Vaccination Supplement (I-693). She reminded us that if the doctor insists on doing the whole physical exam all over again, we should refuse and report him/her to USCIS (we had our physical exam last Nov. 2015 at St. Lukes).

I feel like that the more we wait, my son's chances to remain here becomes slim. I tried calling USCIS and explained the issue for my son. The customer service transferred me to an officer, his name is Officer Beau Young or Boo Young (I hope I heard it right but I repeated his name and he did not correct me) and he suggested that I do Concurrent Filing.

Here is what he said:

1. File I-485 for me and my son - $1070 each

2 File I-130 and attach a copy of approved I-129F - according to Officer Young, we do not have to pay the fee for I-130 as the approved I-129F will cover it.

3. I-131

4. I-765

G-325, I-864, evidences included.

Keeping my fingers crossed. I will inform you the outcome of this petition. Thank you for all your help!

Edited January 29, 2016 by Mydy