K2 Age outs

[LaL 418]

Unfortunately the information in the below FAQ is wrong. This is still a problem. AOS can be submitted at any time prior to 21st birthday, however if the file is not adjudicated prior to them turning 21 they have aged out. I believe we had one case on VJ where the officer understood the issue and somehow the K2 was approved, but this is a minority.

http://www.visajourney.com/faq/k1k2visa-aos.html

6.1.1)....

In August, 2002, the "Child Protection Act" was signed into law by President Bush. What the act does is remove the "age out" limitation, so if the AOS application is accepted prior to the child's 21st birthday, the child can still AOS even after they turn 21. Before this, the newsgroup experienced a handful of cases where extreme measures had to be taken by a family to get the child's case adjudicated before the child turned 21.

ETA: I am unsure what the FAQ should say at this time, as I am still researching, but wanted to open it up for discussion.

Edited October 5, 2007 by LaL

[Captain Ewok 1,900]

I have updated the above to being "striken out" until the community has time to make changes.

[diadromous mermaid 36]

I have updated the above to being "striken out" until the community has time to make changes.

Frankly, I don't see why VJ couldn't quote exactly what USCIS has written on Aging Out.

Enacted on August 6, 2002, the CSPA amends the Immigration and Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. This law changes who can be considered to be a "child" for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by the U.S. Citizenship and Immigration Services (USCIS).

Under the CSPA, if you are a United States citizen and you file a Form I-130, Petition for Alien Relative, on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if the USCIS does not act on the petition before your child turns 21.

Under the CSPA, if you are a lawful permanent resident and you file a Form I-130 on behalf of your child before he or she turns 21, your child’s age will be determined using the date that the priority date of the Form I-130 becomes current, minus the number of days that the Form I-130 is pending. In addition, your child must seek to acquire the status of a lawful permanent resident within one year of visa availability. This provision also applies to derivative beneficiaries on family-based and employment-based petitions.

The matter is not what the CSPA does in terms of amending the lenaguage of the INA, but whether or not a K2 is dealt with in the same manner as a beneficiary of an I-130. One could amend the FAQs to state

that there exists some case law to support that a K2 should receivge the same consideration as a 'child" from the INA, as an under age 21 beneficiary of an approved I-130.

I know if this were my forum, I'd say that, anyway! Edited October 5, 2007 by diadromous mermaid

[Captain Ewok 1,900]

Sounds like a great idea. I will update the FAQ as above if there are no objections .

[LaL 418]

Thank you DM & E!