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

[Girona40 0]

I just got a call from the immigration officer, nearly one month from AOS interview date. Keith is approved - YEA !!!!

AMEN, to that!! At least Daryl can now be approved, since he gains his status from his father in this instance.

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.

That is totally correct and that's why he was issued with a K-2 visa. That is spelled out in 214.2(k)(3).

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.

I am not sure what you are getting at here, Shari. It seems you are tying yourself in knots and you don't need to. There is NO REQUIREMENT anywhere in the K-1/K-2 process that states that Daryl has to be a "stepchild", by their definition. When the AOS part comes into play, Daryl merely has to be the "Son or Daughter" of the beneficiary, which is Keith, and he is.

What they are doing (the USCIS) is confusing the rules surrounding the K-3/K-4 process with the K1-K2 process. In your case there is no requirement for the step-child/parent relationship to be formed before the K-2 reaches the age of 18. However, in the case of a K-4 the rule does apply. (This is actually a situation where the K-3/K-4 is worse off than an K-1/K-2 applicant).

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."

The American Embassy in London has NOTHING to do with the AOS process, once the K-1/K-2 is in the USA. The status they are talking about, i.e. "derive staturs from a fiance visa petition" is purely for the petition to get a VISA to enter the US. That is the end of their part in the process. The embassy is, in effect, the State Department and once their bit is over and dealt with, they pass everything to the USCIS, who come under Homeland Security. The Embassy has nothing to do with AOS.

We have written to the American Embassy in London and asked WHY they issue K-2 visas right up to the beneficiary's 21st birthday, if they know there is no chance they can adjust status before reaching the age of 21. Their reply was "we are following the State Department requirements and once we have issued the visa that is the end of our responsibility".

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.

Quote you are looking for.....

So, Keith is approved and Daryl is still pending which is a lot better than being denied.

Yes, it is better than being denied, because that involves a lot of expense in filing MTR's and Daryl would not be able to work if he received a Denial Notice.

Hopefully we can find all the facts we need and fax them to the officer Monday.

What you need to fax him are not details on the visa issuance, you are already past that stage. You need to get the officer to understand that the AOS requirements for a K-2 are not the same as a K-4. This, it appears, is where he is getting confused. K-2's are non-immigrants and need to become immigrants. A K-4 is already an immigrant and there are rules related to age that apply to them that don't to K-2's.

Shari, I wish I could help you more and if I was going to to have access to e-mail in the next few weeks I would be happy to help. Unfortunately, I am not going to have e-mail available to me, as I will be traveling. If you don't understand this - and I know it is all very confusing because the USCIS are confused themselves over the rules and regs. that apply in this instance - get an attorney to fax across documents that explain the K-2 AOS requirement. i.e. The K-2 falls under section 245 (d) and 216 of the INA. Get him to look at these and then put together a letter to be faxed for you. This is going to be more cost effective in the end. I know that money is tight but it is going to cost you a lot more if you have to issue an MTR and if Daryl is unable to work and the stress that goes along with it all is unbelievable.

Do what you have to do in order to get this sorted, prior to him being denied.

Oh, just thought of something. SPMalone recently just went through this entire scenario with his daughter. He had to go to court and argue that K-2's don't have to be under 18 when the step-parent relationship is formed. He won! Unfortunately, his case cannot be used as a precedent because the decision is "unpublished" and, therefore, can't be used. Unpublished rulings are going to be allowed after January 2007 - that doesn't help you much at the moment, but SPMalone is a member on VJ and you could always try contacting him.

You have my phone number and I am here Monday and Tuesday if you want to call me.

[tamz 0]

Congrats Shari! I am so happy that things are starting to straighten themselves out!!!

I will look for your next update!!

tamz

[Shari 6]

Thanks everyone for the well wishes!!! I faxed a 3 page letter this morning with 10 pages of evidentiay quotes from the USCIS's own web site, my email from London, and quotes from the US Embassy web site. I hope he gets to look at it this week and get back to us.

Girona40 - I just sent you a PM. Thanks for all your help.

[pj1959us 0]

Shari, Hope the documentation helps in resolving the pending issues.

David's son, Chris, arrived here as a K-2 when he was 19 (and was 19 when David and I married) and successfully adjusted status when he was 20. If you need any info from me or if there is any way I can help, please feel free to PM.

Best of luck!

pj

[Shari 6]

Thanks PJ. As I have said, this seems so simple that I just cannot understand why all the immigration officers are not taught this in their training. It sure would save a lot of heartache and $$$$$ for those that have had to fight it.

[Girona40 0]

Tell SPMalone that - I'm sure he would agree!

He just went through the Courts to get his daughter approved - his case was EXACTLY the same as yours! Perhaps you should contact him and get some info. from him (perhaps a copy of the Court Decision) that you could fax to your caseworker. I am sure he would be happy to help.

Edited May 16, 2006 by Girona40

[Girona40 0]

Shari, phone me - I have the document that will prove your case!!! I am leaving at 4am - please call me tonight!

Can't send them as an attachment via PM.

[Shari 6]

Girona40 is a lifesaver!. She has gone above and beyond the call of a VJ friendship to reply to my posts, PM me with lengthy sites that she obvioulsy looked up, and now even her husband has helped by looking up a case that was settled this month regarding the same situation we are in. I just faxed off 30-something pages of pleadings, the court order, and the dismissal of a case EXACTLY like ours to our immigration officer. This has to be the nail in the coffin for this situation.

Glenys: THANK YOU, THANK YOU, THANK YOU ! ! ! !

p.s. She is en route as I type to the UK for holiday. Have a safe and wonderful trip.

[Shari 6]

DARYL'S APPROVED ! ! ! ! I just got a call from the immigration officer. I faxed him a copy of court documents three hours ago from a similar case, he read them, and called me and said that was "exactly" what he needed to approve Daryl's AOS ! ! ! ! ! The information came from Girona40 (Glenys) and her husband. She actually emailed it to me three hours or so before her 4 a.m. flight out to the UK for holiday. What a gal !!!!!!! What a relief.

[pj1959us 0]

I'm so glad!!!

Not only a lifesaver, but she and her family have been dealing with their horrible situation for YEARS, and still are. The fortitude they have displayed has been incredible...and to take the time to assist others so that they can avoid what they are enduring says so much about them and the kind of people they are. If more people were like them, what a wonderful world we would live in.

[tamz 0]

:dance: CONGRATS SHARI!!!!!!!

[Girona40 0]

Shari, what can I say? I am just so thrilled for you and your family and Curt and I were pleased to do whatever we could to help.

My son, Michael, read my your news over the phone (as I was in the UK with no access to a computer) and I cried. I know, only too well, the worry and upset you have been going through and was relieved that you don't have to go through it for three years, as we have, not knowing what is going to happen to your family. We are still awaiting a decision on my son's case - unfortunately, we don't have a precedent to quote. Maybe one day someone will come up with one for us!

I am just thrilled that we were able to help and wish you all the very best - you so deserve it!

Hugs

Glenys

[Shari 6]

Shari, what can I say? I am just so thrilled for you and your family and Curt and I were pleased to do whatever we could to help.

My son, Michael, read my your news over the phone (as I was in the UK with no access to a computer) and I cried. I know, only too well, the worry and upset you have been going through and was relieved that you don't have to go through it for three years, as we have, not knowing what is going to happen to your family. We are still awaiting a decision on my son's case - unfortunately, we don't have a precedent to quote. Maybe one day someone will come up with one for us!

I am just thrilled that we were able to help and wish you all the very best - you so deserve it!

Hugs

Glenys

I can never thank you enough!!! Too bad this stuff is not taught across the board to EVERY immigration officer. Another VJ member has 18 or 19 year old step-sons who have their AOS in July. I forwarded him the court documents to he could have them AT THE INTERVIEW in case anything were to come up. I told him also to make copies and give the officer copies to put in their files in case there were a problem later (if the officer doesn't approve on-the-spot since ours doesn't).

By the way, how was your trip? What did you eat that you missed here?

[Girona40 0]

It is a good idea to go armed with anything and everything at the AOS interview for a K-2. You just never know what inaccuracies they are going to throw at you and how much it will cost you in attorney fees simply trying to put the mistake of the USCIS right. I am sure the people you have supplied these documents with will be grateful for them - they will save them a lot of hassle.

"By the way, how was your trip? What did you eat that you missed here?"

Well, the trip was a HUGE disappointment for me. Returning home after four years of living in the US made me realise just how selective your memory can be! The fact that the weeks we chose to go were the worst they had had, weather wise, in ages probably didn't help! It rained nearly every day we were there!!

The area where I used to live was a quiet hamlet, 500 yards from the most beautiful beach where I regularly walked with the kids and the dog. Everyone knew everyone and it was the most peaceful place on earth! Not any more - it is now a haven for London yuppie's who go for the nightclubs, bars and brawls. There was a programme on the t.v. a few years back called "Newquay Uncovered" which portrayed the entire area in a bad light. It had spread out far enough to completely ruin what I remembered the place to be like. Jamie Oliver has opened a restaurant on the beach, which attracts swarms of young louts and all the local quaint Cornish pubs are now these new "gastro bars" - nothing more than up-market bistro's that charge a small fortune for nouveau cuisine, which I hate. Every place I wanted to show my husband, that I held dear, had changed beyond recognition.

I never thought I would say that the US is "home" but I see now that I would never be able to return to where I came from because it doesn't exist any more.

I was glad that I got the chance to meet up with some old friends and enjoy their company, but I was ready to come back to the US at the end of the fortnight.