Child of US Citizen included in K1 petition

[estafema 0]

Hi.  I came in the US under K1 visa.  My son came with me with K2 visa.  But my K2 is also the biological son of my US citizen petitioner.  When my fiance petitioned me, he thought that he only needed one petition for me and his son with me.  Now, he realized he should have petitioned our son separately so the child should not be under K2 visa.

 

I and my K2 are now awaiting for our AOS interview.  My husband wants to file a new petition for our son.  Is that still possible?  Also, our son is already 20 yrs old.

 

Thank you.

[JFH 12,191]

The child should be a USC already. I’m surprised this wasn’t spotted at the embassy. Even if the father couldn’t transfer citizenship at birth, the child should have had an IR-2 visa and would then have become a USC upon entry into the USA. 

Was the father a USC at the time of the child’s birth? If so, how many years has he lived in the US beyond the age of 14?

[estafema 0]

The father was not yet a USC when the child was born.  The child arrived in the US (as my derivative) last year at the age of 18.

[SusieQQQ 11,587]

1 hour ago, JFH said:

The child should be a USC already. I’m surprised this wasn’t spotted at the embassy. Even if the father couldn’t transfer citizenship at birth, the child should have had an IR-2 visa and would then have become a USC upon entry into the USA. 

 

Child has to be under 18 to automatically acquire citizenship under INA320, so even if they had had IR2 he would have been too old - OP says he had already turned 18 by the time he entered. 

[JFH 12,191]

9 hours ago, SusieQQQ said:

Child has to be under 18 to automatically acquire citizenship under INA320, so even if they had had IR2 he would have been too old - OP says he had already turned 18 by the time he entered. 

Missed that the child was 18 when he arrived. Which leads me to thinking he may have been 17 when they filed. If so, he should have been an IR-2 and used CSPA to freeze his age and get him in as an IR-2. 

[SusieQQQ 11,587]

1 hour ago, JFH said:

Missed that the child was 18 when he arrived. Which leads me to thinking he may have been 17 when they filed. If so, he should have been an IR-2 and used CSPA to freeze his age and get him in as an IR-2. 

He would have been IR2 regardless as under 21 - different age limits apply for visas vs citizenship. (He would have had to be chronologically under 18 for INA320 so CSPA would not have helped.)
 

What I don’t know, is whether it makes any difference now if he adjusts as k2 vs trying to change to IR. Once he has an unconditional green card (and given that he has already aged out of INA320), does it matter what the basis was?