HELP !!! K1/K2 AOS Interview This Morning . . .

[Girona40 0]

Girona is correct, the AO is WRONG, we know of another case in Denver that went through the same ordeal, I just got an email from them that his child was approved, AFTER the child was denied, and they went to Immigration Court to get it cleared up.

I'd make an infopass appointment and talk with a supervisor.

I really hope the officer will find out through his office people and not have to deny it first and have us go through an appeal. Keith still does not have a job and we don't have the money. We live in B'ham and Infopass in in Atlanta, so that is another day off work and more expense to try to fix something he officer might have screwed up, looking at K4 law versus K2 law as Girona40 and Lovenlife have stated. The other thing is about Daryl's medical not being in his file. I wonder if they would still require him to get one if Keith has the receipt for it, London obvioulsy would not have approved Daryl's K2 Visa without it, and the officer admitted "they" lost it. Anyone had this come up before?

USCIS EXTENDS VALIDITY OF MEDICAL EXAMS FILED WITH ADJUSTMENT OF STATUS APPLICATIONS

Medical examinations filed with applications for adjustment of status to lawful permanent resident will remain valid even if they were filed over a year ago. Traditionally, the medical exams required with each residency application have been only valid for a year. Because many adjustment of status applications have been pending for over a year, USCIS began a temporary program in December, 2004 extending the validity of all medical exams filed together with adjustment of status applications through the adjudication of the application. That policy expired January, 2006, but CIS renewed it through January, 2007. Applicants for lawful permanent residency have long been required to submit a medical examination. Traditionally, those exams are valid for one year.

Source: http://www.immigrationone.com/latestnews.php

I would take that receipt and print out the above and take it to the supervisor of the idiot that conducted Keith and Daryl's interview. It sounds like they had no clue what they were doing!

[lovenlife 0]

This is almost like the problem we are having, only the K-2 has expired and deportation proceedings are taking place!

Keep pushing and get this taken care of as soon as possible!

I'm sorry I just noticed this, what is your situation? Why was your K-2 denied, what was stated on your I-290 denial notice? Sorry if you have already posted why, could you tell me the situation or provide a link to thread that details your case?

[pj1959us 0]

I just wanted to confirm that the K-2 does not have to be under 18 when the K-1 marries in the US and adjusts status. David's son Chris (K-2) was 19 when he arrived in the US. The AOS interview was in Chicago in August 2005 (when Chris was 20) and his AOS was approved.

The marriage before 18 years old only applies when you must submit the I-130 (such as for a spousal visa). An I-130 is not required when submitting the AOS I-485 paperwork adjusting from a K-1/K-2, so this does not apply.

Good luck in straightening this out.

[Shari 6]

The step-parent relationship only needs to be created before the child is 18 if you are filing an I-130, which you don't for K-2. If the K-2 is listed on the original I-129F then they derive benefit from the K-1 parent.

Besides the link Lovenlife posted (CFR 8 214.2(k) (3)), is there a site for the above I can copy too. In other words, what can I take to Infopass that says shows the difference in filing an I-130 for the K4 VERSUS what it says for filing an I-129F for a K2 (as we did)? Thanks! Do we WAIT until we hear from the immigration officer who will either approve it or deny it (next Friday) as he might figure out he was wrong, or do we make an Infopass for next week? I really should NOT ask off for another day next week as we would have to drive to Atlanta again, and would prefer waiting until we have an answer for sure. Opinions?

[Girona40 0]

The step-parent relationship only needs to be created before the child is 18 if you are filing an I-130, which you don't for K-2. If the K-2 is listed on the original I-129F then they derive benefit from the K-1 parent.

Besides the link Lovenlife posted (CFR 8 214.2(k) (3)), is there a site for the above I can copy too. In other words, what can I take to Infopass that says shows the difference in filing an I-130 for the K4 VERSUS what it says for filing an I-129F for a K2 (as we did)? Thanks! Do we WAIT until we hear from the immigration officer who will either approve it or deny it (next Friday) as he might figure out he was wrong, or do we make an Infopass for next week? I really should NOT ask off for another day next week as we would have to drive to Atlanta again, and would prefer waiting until we have an answer for sure. Opinions?

I've sent you some sections of the INA and CFR that may help. Print them off and take them with you when you attend your INFOPASS appointment.

If you decide that you want to wait until the idiot you saw makes a decision, you can do that, but if an official Denial is sent out then you have to go through the process of issuing a MTR and you will need an attorney to get you through it, cos it's a nightmare!

Personally, I would want this straightened up BEFORE they issue a Denial.

See if you can turn him round before you have to go through all this. If you point out a few things, nicely, to them they may see that they are wrong and just go ahead and grant his AOS. You have nothing to lose at this point from going there before the Denial comes in the mail.

Edited April 14, 2006 by Girona40

[pj1959us 0]

I agree with Girona...I would definitely try to nip this in the bud before a decision is reached and to print the sections she provided.

I would also take the original I-129F that states the age you may apply for the K-2. Further, I would take the instructions from the USCIS website (http://uscis.gov/graphics/formsfee/forms/i-485.htm) for the I-485 that outlines the documents needed (BOLD is mine):

Family-Based Applications

Immediate Relatives

If you are the immediate relative (spouse, parent or unmarried child under 21 years old) of a U.S. citizen, submit the following forms:

I-485, Application to Register Permanent Residence or to Adjust Status

G-325A, Biographic Information

Either your original I-130, Petition for Alien Relative (if you are filing concurrently), or a copy of your I-797, Notice of Action (if the petition was already approved). The K-2s petition has already been approved, because of the K-1, which means the I-130 is NOT needed. Be sure you have submitted a copy of the I-797 NOA2 you received for the K-1 with the I-485 package.

I-864, Affidavit of Support

I-693, Medical Examination of Aliens Seeking Adjustment of Status

All required supporting documentation as listed on the above forms.

I would also highlight the pertinent sections of the I-485 petition instructions that specifically state the K-2 may apply to adjust based on the K-1 AND on the I-485 petition itself under Part 2 on Page 1 (I entered as a K-1 fiance(e) of a US citizen whom I married within 90 days of entry, or I am the K-2 child of such a fianc(e). [Attach a copy of the fiance(e) petition approval notice and the marriage certificate].

Hope that helps.

[diadromous mermaid 36]

http://uscis.gov/graphics/services/INADEFS.pdf

DEFINITION OF CHILD AND PARENT IN INA

This says:

DEFINITION OF CHILD AND PARENT IN INA

CHILD: as used in Titles I & II

SEC. 101(B)(1)

The term ‘child’ means an unmarried person under twenty-one years of age who is -

a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.

But again, the USCIS site says: "You may also apply to bring your fiancé(e)'s unmarried children, who are under age 21, to the United States."

SO WHICH ONE IS RIGHT? WHY DO THEY CONTRADICT THEMSELVES?

Both are correct. The distinction lies in who is considered the petitioner and who is the beneficiary and at what time in the process.

In the case of a K-1, the USC is the petitioner and the K-1 the beneficiary. A K-1's child under age 21 derives entitlement through the K-1 in that scenario, as he/she has no relationship to the US citizen until a marriage takes place.

In the event of a USC who marries a foreign-born and wishes to then petition a child of that spouse, then the USC petitions the child (under 18) as an immediate relative step child, because the marriage to the foreign-born has created an immediate relationship to the child.

[Girona40 0]

That is absolutely correct, Mermaid, and it seems so unfair to those petitioning for a child of a spouse. They actually get a worse deal than those petitioning for a fiance and child. A spouse's child has to be under 18 yet a fiance's child under 21. Just another example of the fairness of the INA.

[Peggy 1]

Yeh, that doesnt seem to be fair at all.

Should be the same for both types of visa's.

[Shari 6]

UPDATE: 05/12/06: I just got a call from the immigration officer, nearly one month from AOS interview date. Keith is approved - YEA !!!! At first he said that Daryl was not. I told him that I found documentation regarding this showing that a K1 can bring over his/her child if they are unmarried and under the age of 21. He read to me the INA bit about the definition of a child, the part that says a "stepchild" must have been under the age of 18 when the marriage took place, but as I told him that I have learned from reading and learned for you all, when the K1 was filed, he was NOT my stepchild yet. The officer said though that when the AOS was filed he was my stepchild, but again, I told him that the AOS was filed for the K1 visa, and that on a K1 visa you have to get married before you file for the AOS, so I am trying to prove my point, which to me looks right. I got it off the USCIS website. But he is letting me fax him all I can find on this, thankfully!!! He seems like he wants to help, but just needs to see something in black and white that goes in our direction. Also, I read him what the London Embassy had emailed me when I asked them about this age issue. They wrote: “Children under the age of twenty-one who have no claim to U.S. citizenship may derive status from a fiancé(e) visa petition filed on behalf of a parent." He seemed to like that and said that that sounded like it would go in our favor. I just now need to find where that is in print, what it was taken out of. I know I have seen it before but now need to find it.

So, Keith is approved and Daryl is still pending which is a lot better than being denied. Hopefully we can find all the facts we need and fax them to the officer Monday.

[sukie175 0]

Great news Shari, I hope it all gets sorted Monday

[pj1959us 0]

Great news!!! Good luck on sorting the rest!

[eau_xplain 2]

Glad to hear of Keith's approval, Shari!

Hope you will soon hear of Daryl's approval next!

[Dan&Mitzi 0]

Congratulations!!!!! Great news of finally getting Keith's AOS approval!!!! Hope you find everything you need to get Dayrl approved too.

Mitzi

[rebeccajo 14]

Wow! What kind of a moron did you get for an interviewing officer? You sending him research material that you got straight from USCIS? Holy #######......scary scary.....

Anyway, I hope that when the research material lands directly in his lap he will be able to ascertain the facts and send out Daryl's approval.....