Age 21 K-2 AOS Denial

[RandyW 149]

We got our Notice of Denial yesterday for the AOS application for Jiaying's son Jingyu. They referenced 8 CFR, Part 245.1©, which is different from previous cases (if I remember right) where they referenced Section 245(d) of the INA. It still basically hinges on the fact that he was 21 at the time of the interview on April 9.

The previous case was denied at the Washington, D.C. office. The USCIS then, late last year,appealed their own denial, in order to set a precedent for the rest of the country. Their decision was upheld by the AAO (Administrative Appeals Office). Another case was taken to court by the applicant. That case was summarily dismissed in favor of the USCIS just last month.

The only action they are taking at this point is the denial, and to revoke his Employment Authorization, effective May 1. There is no mention in the letter about when he might have to leave the country.

There is also no mention in the letter of how to appeal.

His NOA1 for the AOS application was Dec 14, 2006, and his 21st birthday was Dec 17, 2006. The interview date was April 9.

My question is this (for someone with knowledge of AOS denials):

It seems to me that between the two cases, one of which was appealed to the AAO and denied, and the Jiang case, which was decided on the motions in March, is it possible that an appeal on our case might be summarily denied? Or is it possible that we might buy a little time with an appeal.

Without Employment Authorization, though, the appeal might just spin his wheels with nowhere to go. Would an appeal restore his Employment Authorization?

[LaL 418]

you definatelyt need to get in touch with Girona and the other people who are facing this issue.

[Jasman0717 9]

The child (adult now) no longer meets the requirements for the K2. You need to review the visa bulletin. I am not sure if the petitioner for adult children has to be a citizen but currently the USCIS is processing petitions for adult children in China from October 1997 so there appears to be about a 10 year wait. I hope this is helpful.

http://travel.state.gov/visa/frvi/bulletin...letin_3219.html

[Yodrak 7]

jasman,

Point of clarification: the child is not applying for the K2, they are applying for adjustment of status on the basis of having been a K2. The dispute is over whether of not a K2 can 'age out'. USCIS, in the Washington DC area anyway, is saying that they do, other legal opinion is that they do not.

Aside - I haven't seen a post from Girona in a while, I wonder how her son's case is going? She's got a good attorney.

Yodrak

The child (adult now) no longer meets the requirements for the K2. You need to review the visa bulletin. I am not sure if the petitioner for adult children has to be a citizen but currently the USCIS is processing petitions for adult children in China from October 1997 so there appears to be about a 10 year wait. I hope this is helpful.

http://travel.state.gov/visa/frvi/bulletin...letin_3219.html

Edited April 20, 2007 by Yodrak

[Jasman0717 9]

jasman,

Point of clarification: the child is not applying for the K2, they are applying for adjustment of status on the basis of having been a K2. The dispute is over whether of not a K2 can 'age out'. USCIS, in the Washington DC area anyway, is saying that they do, other legal opinion is that they do not.

Aside - I haven't seen a post from Girona in a while, I wonder how her son's case is going? She's got a good attorney.

Yodrak

The child (adult now) no longer meets the requirements for the K2. You need to review the visa bulletin. I am not sure if the petitioner for adult children has to be a citizen but currently the USCIS is processing petitions for adult children in China from October 1997 so there appears to be about a 10 year wait. I hope this is helpful.

http://travel.state.gov/visa/frvi/bulletin...letin_3219.html

Oophs, need to be more careful before putting foot in my mouth! I hope someone can provide an answer, it would seem crazy that the child wouldn't be allowed to adjust. What happens, they get the boot out of the country?

[LaL 418]

jasman,

Point of clarification: the child is not applying for the K2, they are applying for adjustment of status on the basis of having been a K2. The dispute is over whether of not a K2 can 'age out'. USCIS, in the Washington DC area anyway, is saying that they do, other legal opinion is that they do not.

Aside - I haven't seen a post from Girona in a while, I wonder how her son's case is going? She's got a good attorney.

Yodrak

The child (adult now) no longer meets the requirements for the K2. You need to review the visa bulletin. I am not sure if the petitioner for adult children has to be a citizen but currently the USCIS is processing petitions for adult children in China from October 1997 so there appears to be about a 10 year wait. I hope this is helpful.

http://travel.state.gov/visa/frvi/bulletin...letin_3219.html

Oophs, need to be more careful before putting foot in my mouth! I hope someone can provide an answer, it would seem crazy that the child wouldn't be allowed to adjust. What happens, they get the boot out of the country?

that is exactly what happens according to anecdotal evidence. why, a chiild can receive a K2 visa when they are 20 years old and 364 days then is deportable the next day is beyond me. this needs some major attention. others are getting together on this issue, and suggest the OP does as well.

[Girona40 0]

Hi There! It has been a while since I posted on VJ - I just got back from the UK where I was taking care of my father who was recently diagnosed with colon cancer.

Anyway, I was sorry to hear about this recent K-2 AOS denial. This is one of at least half a dozen now. My son is now in removal proceedings and we are awaiting a date for the hearing. Yes, that is exactly what happens - the applicant files for AOS at the age of 20 and because the USCIS don't get round to dealing with it until the applicant has turned 21 they are "booted out of the country". My son has been here in the US for 4 years and they want to send him back to England. His mother and sister, who came at approximately the same time, are now US citizens!

I understand that my husband has been in contact with this latest denial and will explain a few options open to the OP. Unfortunately, the USCIS are now denying people in California, Texas, West Virginia, and other states - it is not just the Washington DC office now.

There needs to be either a legislative fix or a memo that confirms the situation. The AAO has agreed, in our case, with the District Director in DC, but they are part of the same Service. It needs to get out of the USCIS' hands for someone to look at it objectively, i.e. an Immigration Judge or the BIA.

I have a lot going on at the moment, so won't be posting very often, but if anyone else finds themselves in this situation, please feel free to e-mail me.

G.