K2 out of status HELP help help

[12344 0]

Hello VJers,

Here is my situation PLEASE HELP

We came to US 2 years ago. I am now 22 years old and my borther is 21 years old. I have also 10 years old and 8 years old borther. Our visa was K2.

My mother and step father married within the 90 days rule. However, my parents did not apply for AOS or adjustment of status. They did not know what to do with the paperworks. Now we are out of status. We consulted lawyers but they said me and my borther are not eligible anymore because we are over 18. But I think they were wrong. My mother has not yet adjust her status because they do not know what to do. My 2 younger brothers are my step father kids. Can my step father petition them in states instead of adjusting their status? I know that me and my brother depends on the adjustment of status of my mother but are we still eligible? What do we do? What are the steps we need to do?

Please help me. Please give me information.

Thank you all so much.

[Hypnos 6,576]

The lawyers you have talked to are right, you have now "aged-out" and can no longer file for AoS.

A derivative visa holder (such as a K-2) must file for AoS before they turn 21. It's now too late for you and your 21 year old brother, although your 10 and 8 year old siblings would be able to file for AoS.

Your stepfather also cannot file an immediate relative petition for you and your 21 year old brother, because it seems they were married after you both turned 18 (plus you are now both over 21).

Your mother could file F2B family preference I-130s for you, but this would not confer any legal status on you, and there is currently a 10 year wait for this visa category for applicants from the Philippines.

In short, you and your 21 year old brother have no path to a green card.

Your mother can still file for AoS for herself and your two youngest siblings, but that will not help you in any way, even if she becomes a US citizen.

Edited February 19, 2013 by Hypnos

[JimVaPhuong 4,863]

The lawyers you have talked to are right, you have now "aged-out" and can no longer file for AoS.

A derivative visa holder (such as a K-2) must file for AoS before they turn 21. It's now too late for you and your 21 year old brother, although your 10 and 8 year old siblings would be able to file for AoS.

Your stepfather also cannot file an immediate relative petition for you and your 21 year old brother, because it seems they were married after you both turned 18 (plus you are now both over 21).

Your mother could file F2B family preference I-130s for you, but this would not confer any legal status on you, and there is currently a 10 year wait for this visa category for applicants from the Philippines.

In short, you and your 21 year old brother have no path to a green card.

Your mother can still file for AoS for herself and your two youngest siblings, but that will not help you in any way, even if she becomes a US citizen.

This was addressed by the BIA in 2011. K2's are eligible for adjustment of status as long as they entered the US with their K2 visa before they became 21 years old, and their K1 parent is eligible for adjustment of status based on the K1 (they married within 90 days).

http://blog.mikebakerlaw.com/2011/07/bia-addresses-k-2-age-out-eligibility.html

The OP can adjust status but ONLY based on the K2. He cannot adjust status based on any new petition filed by his step-father because his mother married his step-father after he was 18. He cannot adjust status based on any new petition filed by his mother because she's not a US citizen. His mother must adjust status based on the K1 in order to secure his eligibility to adjust as a derivative.

[Hypnos 6,576]

I am happy to be wrong in this instance.

I relied on information here: http://www.visajourn...-of-status-tips which is certainly older than JimVaPhuong's information above.

I will look into trying to get this information amended or removed by a VJ admin, since it appears to be erroneous.

Edited February 19, 2013 by Hypnos

[12344 0]

Thank you so mcuh for the information. What are the steps we need to do? How do we do the paperworks? My parents have no clue what documents need to file? Thats why its been delayed for 2 years. Please give me some insight. Thank you very much.

This was addressed by the BIA in 2011. K2's are eligible for adjustment of status as long as they entered the US with their K2 visa before they became 21 years old, and their K1 parent is eligible for adjustment of status based on the K1 (they married within 90 days).

The OP can adjust status but ONLY based on the K2. He cannot adjust status based on any new petition filed by his step-father because his mother married his step-father after he was 18. He cannot adjust status based on any new petition filed by his mother because she's not a US citizen. His mother must adjust status based on the K1 in order to secure his eligibility to adjust as a derivative.

[didopage 337]

You and your parents should start by taking a look at the USCIS.gov website. It's full of informations, you have all the forms there, with their instructions on how to fill them and what documents to include.

The Guide tab on VJ is also a great source of help.

[JimVaPhuong 4,863]

I am happy to be wrong in this instance.

I relied on information here: http://www.visajourn...-of-status-tips which is certainly older than JimVaPhuong's information above.

I will look into trying to get this information amended or removed by a VJ admin, since it appears to be erroneous.

When I wrote the information in the pinned thread it was accurate. The new BIA decision was announced by member RandyW in post #82 on page 6. I'll send a PM to Sundrop and ask if the second post can be updated with the current policy information.

[Hypnos 6,576]

Ha, I didn't know you had written that too.

As an aside, I still see a lot of sites, particularly lawyers' sites, mentioning the widow penalty, and that hasn't been law for four years.

[JimVaPhuong 4,863]

Thank you so mcuh for the information. What are the steps we need to do? How do we do the paperworks? My parents have no clue what documents need to file? Thats why its been delayed for 2 years. Please give me some insight. Thank you very much.

Normally, when it's been more than two years since the wedding I would usually recommend that an I-130 be included with the K1's I-485. The reason for this is to bypass the two years of conditional residence that is statutorily required for people who adjust as a K1. However, in this case I believe that would be a mistake. An I-130 would mean the K1 is adjusting in the IR1 visa category, which would make the K2 ineligible to adjust status.

Follow the K1 adjustment of status guides:

http://www.visajourney.com/forums/index.php?autocom=custom&page=k1k3aos

and the additional tips for K1:

http://www.visajourney.com/forums/index.php?autocom=custom&page=k1aos

and K2:

http://www.visajourney.com/content/k2-visa-adjustment-of-status-tips

Ignore the section titled "Older K-2 Visa adjustees". That comes directly from the pinned thread, which as Hypnos has pointed out, that pinned thread is out of date in this particular area.

A K1 who married within 90 days of entering the US remains eligible to adjust status virtually forever, as long as they're still married to the K1 petitioner. There is no requirement for the K1 to adjust status within any specific window of time. Likewise, a K2 derivative remains eligible as long as the K1 is eligible. This is presuming neither the K1 nor the K2 do anything to make themselves inadmissible to the US, like committing a felony. The BIA decision eliminates the possibility that a K2 who entered the US before they were 21 would ever age out, PROVIDING that they are adjusting status as a K2 and not under any other visa category.

There are plenty of people here who entered the US with a K1 or K2, and who successfully adjusted status well after their I-94 status expired. My wife and step kids are examples. We waited several extra months after their I-94's had expired because I had to pony up the dough for AOS fees for three people, and it was convenient for me to wait for my tax refund in order to pay for it.

[dgalster 1]

I am happy to be wrong in this instance.

I relied on information here: http://www.visajourn...-of-status-tips which is certainly older than JimVaPhuong's information above.

I will look into trying to get this information amended or removed by a VJ admin, since it appears to be erroneous.

Is this post still accurate? I see that the guides have not been updated so I am just wondering if there has been any change. I am also in the situation of having a K2 who came to the US before age 21 but is now over 21. So we want to file for AOS but I want to make sure that this thread has the correct information as opposed to the guide.

Thanks.

[Hypnos 6,576]

Jim's post above still has the correct info, and the linked guide is incorrect.

[Pitaya 2,577]

~Old thread closed to further comment.~

~Time to start a new thread, today's posting is asking a question of a member that hasn't been active for alsost 3 years. ~

Pitaya

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