K1/K2

[jdaveh 58]

This may be the wrong place to post but I am curious about a technical detail. My fiancée and I are at the embassy stage(waiting on the papers to get there) Her son is coming with her. However he will be 21 soon, he was 20 when we started the process but I am wondering if we do not finish everything by the time he turns 21 will that affect his entering the country

Thanks

[EM_Vandaveer 2,408]

He needs to get the visa before he turns 21.

EDIT: He needs to enter the US before he turns 21.

How soon is he turning 21?

You may run into problems with AOS, too.

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

"Child Status Protection Act: Immigration law generally requires a derivative child visa holder to adjust status before they are 21 years old. The Child Status Protection Act protects them from "aging out" as long as their AOS petition is accepted by USCIS before their 21st birthday. However, the CSPA only applies to K2's if the K1 marries the US citizen petitioner before the K2 turns 18. If the marriage occurs after the K2 is 18 then their AOS must be approved before the K2 turns 21.

This can be a big problem because a K2 is eligible to receive a visa right up until they are 21 years old, but if it's too close to their 21st birthday when they come to the US then they might not have time to finish AOS before aging out."

Edited July 11, 2016 by EM_Vandaveer

[EM_Vandaveer 2,408]

CSPA won't apply to him. Tough situation, I'm not sure how to overcome this.

[Unlockable 7,314]

How soon is soon?

[Ksenia_O 696]

This may be the wrong place to post but I am curious about a technical detail. My fiancée and I are at the embassy stage(waiting on the papers to get there) Her son is coming with her. However he will be 21 soon, he was 20 when we started the process but I am wondering if we do not finish everything by the time he turns 21 will that affect his entering the country

Thanks

As long as he entered the U.S. before he turned 21, he is safe.

[Ksenia_O 696]

He needs to get the visa before he turns 21.

EDIT: He needs to enter the US before he turns 21.

How soon is he turning 21?

You may run into problems with AOS, too.

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

"Child Status Protection Act: Immigration law generally requires a derivative child visa holder to adjust status before they are 21 years old. The Child Status Protection Act protects them from "aging out" as long as their AOS petition is accepted by USCIS before their 21st birthday. However, the CSPA only applies to K2's if the K1 marries the US citizen petitioner before the K2 turns 18. If the marriage occurs after the K2 is 18 then their AOS must be approved before the K2 turns 21.

This can be a big problem because a K2 is eligible to receive a visa right up until they are 21 years old, but if it's too close to their 21st birthday when they come to the US then they might not have time to finish AOS before aging out."

As long as a K2 entered the U.S. before he/she turned 21, a K2 is safe. A K2 does not need to be under the age of 21 when he/she gets a green card. This based on the BIA's 2011 decision, which you can read at http://www.justice.g.../07/25/3719.pdf.

[EM_Vandaveer 2,408]

As long as a K2 entered the U.S. before he/she turned 21, a K2 is safe. A K2 does not need to be under the age of 21 when he/she gets a green card. This based on the BIA's 2011 decision, which you can read at http://www.justice.g.../07/25/3719.pdf.

Good to know. Strangely the USCIS website is still not up-to-date on this issue.

https://www.uscis.gov/green-card/green-card-through-family/green-card-through-special-categories-family/k-nonimmigrant

[Ksenia_O 696]

Good to know. Strangely the USCIS website is still not up-to-date on this issue.

https://www.uscis.gov/green-card/green-card-through-family/green-card-through-special-categories-family/k-nonimmigrant

yes.... It used to be like that, but thank God - not anymore

I agree the USCIS web site should've been updated due to this - not to confuse and frighten parents/step parents with K-2s possible "out-of-age" status.

[EM_Vandaveer 2,408]

yes.... It used to be like that, but thank God - not anymore

I agree the USCIS web site should've been updated due to this - not to confuse and frighten parents/step parents with K-2s possible "out-of-age" status.

Also VJ should be updated, too.

[Ksenia_O 696]

Also VJ should be updated, too.

we are getting there

[KayDeeCee 4,893]

The USCIS has not updated their sites and information, but there indeed was a BIA ruling years ago. The K-2 does not 'age-out'.

The BIA ruling in 2011, Matter of Le > http://www.legalactioncenter.org/sites/default/files/docs/lac/Matter-of-Le-Decision-6-23-2011.pdf


As long as a K-2 entered the US before turning 21 and the K-1 parent married the I-129F petitioner within 90 days of entry, then they are eligible for AOS and do not age out.

A K-2 does not need to be under 18 when the K-1 parent's marriage takes place. The K-2 just has to receive the K-2 visa and enter the US with it before turning 21, and the K-1 parent must marry within 90 days of enter with their K-1. That is all it takes for a K-2 to be eligible to adjust status.

USCIS Q&A from 2012. The USCIS is slow in providing updated info and guidance on new laws/rulings, but at least it was mentioned here > http://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/October%202012/AILA-Liaison-Committee-meetingQA.pdf

You can find several articles and lawyer sites discussing the ruling if you Google something like "K-2 age out'.

And this is from 2015 and proves that USCIS is slower than a weighted down turtle traveling through a molasses ridden tar pit. They have drafted the guidance, but the internal review is lasting for years. What a load of lazy BS >

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/PED-Field_Ops_Agenda_October_2015_Cleared.pdf

K-1 Matter of Sesay and Matter of Le Guidance
7) During our liaison meeting on March 21, 2012, USCIS stated that it had drafted guidance related to Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) and Matter of Le, 25 I&N Dec. 541 (BIA 2011) and that the guidance would be issued soon after the completion of an internal review.8 Please provide an update on the status this guidance.

USCIS Response: USCIS has draft guidance related to Matter of Le and Matter of Sesay. This guidance is currently undergoing internal review.

[EM_Vandaveer 2,408]

The USCIS has not updated their sites and information, but there indeed was a BIA ruling years ago. The K-2 does not 'age-out'.

The BIA ruling in 2011, Matter of Le > http://www.legalactioncenter.org/sites/default/files/docs/lac/Matter-of-Le-Decision-6-23-2011.pdf

As long as a K-2 entered the US before turning 21 and the K-1 parent married the I-129F petitioner within 90 days of entry, then they are eligible for AOS and do not age out.

A K-2 does not need to be under 18 when the K-1 parent's marriage takes place. The K-2 just has to receive the K-2 visa and enter the US with it before turning 21, and the K-1 parent must marry within 90 days of enter with their K-1. That is all it takes for a K-2 to be eligible to adjust status.

USCIS Q&A from 2012. The USCIS is slow in providing updated info and guidance on new laws/rulings, but at least it was mentioned here > http://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/October%202012/AILA-Liaison-Committee-meetingQA.pdf

You can find several articles and lawyer sites discussing the ruling if you Google something like "K-2 age out'.

And this is from 2015 and proves that USCIS is slower than a weighted down turtle traveling through a molasses ridden tar pit. They have drafted the guidance, but the internal review is lasting for years. What a load of lazy BS >

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/PED-Field_Ops_Agenda_October_2015_Cleared.pdf

K-1 Matter of Sesay and Matter of Le Guidance

7) During our liaison meeting on March 21, 2012, USCIS stated that it had drafted guidance related to Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) and Matter of Le, 25 I&N Dec. 541 (BIA 2011) and that the guidance would be issued soon after the completion of an internal review.8 Please provide an update on the status this guidance.

USCIS Response: USCIS has draft guidance related to Matter of Le and Matter of Sesay. This guidance is currently undergoing internal review.

All of this is great information. Could VJ be updated with this? Specifically, this page:

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

[KayDeeCee 4,893]

All of this is great information. Could VJ be updated with this? Specifically, this page:

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

You can make a post in the Site Discussion forum and ask, though lots of requests for changes and updates are ignored.

[jdaveh 58]

Thank you for all the notes and posts. He turns 21 in December so we should be alright but I was wondering

[Greenbaum 12,259]

I had a K-2 enter just months before her 21st BD and we AOS when she is 21 with no problems. The K-2 must be on US soil before they turn 21. You do that and it's smooth sailing.