future stepdaughter immigration status once here

[jj]

Well as our interview draws closer, I have question pertaining to Marina's daughter after they come to states. It involve her k-2 status and age and green card.   I was told there may be "some issues" if she turns 21 next July and still does not have here green card.  If not received green card by then is she considered to have over stayed here visa , even if  she is my step daughter by then?   She will have 8 months to go thru AOS and get green card, but it looks like it takes longer than that.   Anyone have any answers, or advice. May WilliamIII might know?  -jj-thanks

[William3rd]

K2 needs to complete the process by the age of 21 or they are no longer eligible to AOS based on the K process. She would be in status until the AOS is denied.

You should seek legal counsel in your area to ensure that the AOS is filed as quickly as possible and that appropriate efforts are made to interview prior to the 21st birthday

[jj]

Thanks WmIII . What if interview is not until after 21st birthday?    Can we petition for extention ?   We plan on marriage in October 2007, , immediately filing AOS for both of them. She will be age 21 in July 2008.

[William3rd]

You should be OK. However, there are no extensions on dates of birth and they cant "extend" eligibility except as provided for at law. You would be looking at "expediting" the applications

[jj]

ok thanks WmIII.  I think our biggest concern is that if she does not get interview in time, and time runs out, will she be deported as overstaying visa and not allowed back in for 10 years.

[jb]

I was under the impression that K-1s, and K-2s were here legally, the US Government issued visas based on a 90 day marriage.  After the marriage occurred within the alloted time frame, (the required 90 days), while the child was still legally a minor would put her in limbo until the AOS, awaiting a change of status, regardless of age.  The fact is that; the marriage occurred on time and the other fact that she (the daughter) grows older is not a consideration.

Correct me if I'm wrong.

[jj]

jb- I thought also that as long as we filed AOS and daughter was under 21, that she would be ok even if she turned 21 during the process.  I have read reports on Visa Journey were AOS was filed at age 20 and child turned 21 one week before interview and was denied and told he was no longer falling under k-2 visa .  I thought that the Child Status Protection Act of 2002 signed by the president addressed this issue, but can not find k-2 wording, only k-4, altho the wording may leave room for most common immigrant categories.  I have an 8 month window after marriage.  WmIII said we should be ok, but understand AOS approval can take years.  The Charlotte center is working of February applicants, and that is after it is received from national processing center, however long that takes.

[jb]

Frankly, I still think you are OK with this...  If you filed on time, you should not be penalized if the step-child grows a year older as the paperwork moves forward.

Just MHO... The lawyers here can set me straight if I'm cocked up.

[William3rd]

CSPA will not apply to this case. There is no age out protection.

[jj]

That figures . seems like the sincere legal applicants get no flexibility for close time lines. I guess they had to be more concerned trying to break the rules for a  million or more illegal immigrants so that they could stay here.   So, WmIII, ib worse case scenerio, the usics drags it out, and she turns 21.  Will she be barred from re entry for 10 years , or sent back to Russia  and be free to try student visa, or her own k1 later. In other words will she considered to overstay a visa even tho it was not her fault?  Also, would an attorney be able to expediate from the start of AOS, or have to wait until several months.

[jb]

The girl is 20 y.o. now and will almost certainly pass her 21st BD before the AOS process is completed.  I may be wrong, but the K-2 child of the affianced can legally stay in the US after the marriage, and then her status is that of "awaiting adjustment of status", exactly the same as her mother.   William has said that there is no age out protection, and that may be true, however you can list her on the same I-485 when you submit the form for AOS on your new wife and see what happens.  It would be wise to also file the I-131 for Advanced Parole and the I-765 for the EAD for the daughter as well as the new wife at the same time you file the I-485   You could also file an I-130 and I-485 seperately for the girl, however I don't think it would serve any purpose to do so, and the filing fee for these forms is getting rather pricey at $355.00 and $930.00 respectively.

Also, would an attorney be able to expediate from the start of AOS, or have to wait until several months.
 

I think the immigration attorneys would love for you to believe they have an inside track with the USBCIS, however from what I've seen, their cases are handled exactly the same as if you submit the documents yourself.  They all go to the bottom of the pile and eventually work their way to the top.

To answer your other question, if the girl returns to Russia without completing the AOS process she would age out and then be treated as any other would-be immigrant, she would be free to return on a K-1 of her own if she found a boy friend willing to sponsor her.  As far as I know there would be no bar placed on her passport.  The student visa might be a possibility if she can apply and be accepted to a college or university while here in the K-2 status, however that information is not something I would speculate about.  If you like, I can ask my step-son how he's gone about this since he's been here on one student visa after another for the past 15 or 16 years, I think he's an expert on the subject.

In any case, good luck, you are going to need it if what William has said is true.

[William3rd]

No I130 will be possible for the girl on the basis of the USC marriage. Post- age 18 marriages do not give a benefit except under fiancee K2. Mom's I130 will have to wait until mom gets her GC approval.

[jb]

Mom's I130 will have to wait until mom gets her GC approval.

That's kinda what I thought too from my research.  I still think the K-2 AOS filing is her best bet.  According to onversations I've had with my neighbor, (he's a USBCIS employee), once the under 21 child is legally in-country, awaiting "adjustment of status", turning 21 would not affect her condition.  If you think about it that makes sense, after marriage the K-1/K-2 is finished regardless of when the wedding takes place, in 10 days or 89 days, the "90 day visa" simply evaporates into thin air and the wait for status change begins.   To look at it from the point of view of overstaying the 90 days, then all the K-1 brides would all be in violation after the wedding.  The only problem would be staying more than 90 days if there were no wedding.  I think jj is alright if they come and he gets married, if OTOH, if the wedding doesn't take place then he has to pack 'em up and ship 'em back to the FSU.

[William3rd]

I hate to say this but K2 AOS routinely age out if the the process is not completed by the 21st birthday. Which is why it is important to be done right the first time and that the file be flagged as an age out.

My advice is to use an attorney for the AOS

[jj]

jb - thanks for your positive thoughts.  I agree it makes no sense to allow k-2 and then not tell them at embassy that they have no chance because they will be 21 before any processing can be completed.  But then again, what makes sense when you are trying to do things the right way.  Basically , the lawmakers blew it by allowing good people to fall thru the cracks.    Her daughter will be 21 on July 23,2008. We plan to be married as soon as social security cards received, which hopefully will be October 14, 2007 (1 month after entry).  I may change my mind on that and marry sooner, but  it is quicker to get ss# in k-1 status , than wait until after marriage.  This gives me 9 months to complete process. My understanding is that one can expediate the FBI name check if  child is aging out. This would be my plans, because we have already been delayed on k-1 due to 3month admin. review.  I had to hire a lawyer in moscow to dig into it and within a short period I was out of admin review and we had interview now Aug 30.  I will ask him to recommend an attorney in Charlotte who maybe knows the system there at local uscis office and discuss the situation.  The Charlotte center processing time is now working on feb 13 applications (6 months) , and i assume that is after receiving all paperwork from Chicago. WmIII may correct me on this.  I have all forms run off now to start process for each of them as soon as we are married. 

WmIII- yes it seems legally they could send her back even 1 day shy of her birthday if they want to.  I guess children of k-1 marriage, are not as important as k-4 in their view.  But I will use attorney again, but processing time is totally up to uscis and like i said, we have already been discouraged with adm review.  I will start early, be aggressive, and maybe you could explain "flagged as age out" to me a little more detail as I will mention this to attorney.  Also what is bottom line of the Interoffice Memorandum issued from Uscis Michael Aytes, to Service Center Directors dated march 15,2007 concerning AOS K-2 Aliens.  Is it nothing new, only addressing that those over 18 be given same consideration as under 18, thus being also a "minor"?   It says it filled in a gap concerning k-2 kids but why doe it not address what "upon approval" means. 

"Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of satus to lawful permanent resident under section 245 of the Act.  Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act".
That is probably straight forward for you , but still kind of ambiguous to me. 

[William3rd]

Use a US based attorney in your area.

Marriage cases except fiancee visa cut off eligibility for the children at age 18. You cant mix the K2 and K4 because there are different eligibilities. I would skip the SS# issue and marry immediately if that is what you are going to do. Then file ASAP with an immigration attorney in your area. The case needs to be flagged as an age out.

[jj]

thanks for info WMIII.  How does one flag an application?  Does it really make a difference with uscis

[William3rd]

if they are not made aware of the need to finish the case in an expeditious manner and it goes over time, you lose!!!!

Your attorney will take care of that for you.

[jj]

ok - I will add this to all efforts on my part.  I am sure there will more to come. thanks

[jj]

WmIII - just meant to ask you, have you seen any cases in k2 that were approved even after ageing out?(including court cases)

[William3rd]

not if they notice the date of birth

[jj]

WmIII- I was told to consider getting Marina's daughter switched to a Student visa during the first 90 days of her k-2 visa and do a switch.  I was told that this might be a better option due to aging out.  How long does it take to do the transfer if I can get a college to give her appropriat form and sign up for January semester?  Have you known anyone who has done this? thanks.

[John24689]

The CSPA is for “immigrants”.  K-1’s and K-2’s are “non-immigrants”.  There is no Aging Out for a K-2.  It does not apply to non-immigrants. Unfortunately, since the passage of the CSPA, some or most of the USCIS Adjudicators have seen fit to deny the Adjustment of Status for K-2’s who have turned 21 when they have their interview.  Other Adjudicators have approved the K-2’s who turned 21 when they have their interview. 

My step-daughter had her interview one month before she was 21.  I know of three cases where the K-2 was denied because they “Aged out” due to turning 21 before the AOS interview.  The K-2’s are still in the US and have not been deported.  It is a problem for everyone who has a K-2 and are interviewed for their AOS after they turn 21.  It is the luck of the draw on what the Adjudicator thinks and does.

I have talked to the local Immigration Officer and they told me 3 months before the AOS interview, that my step-daughter would not Age Out.  One month before the AOS interview, she told me that my step-daughter would Age Out.  The Adjudicator told me after the interview that she would not have Aged Out if she had been 21.  I also got different answers calling USCIS.

I would suggest getting married as soon as possible after they arrive and send in your paperwork immediately afterwards.  I would also suggest you see your local Immigration Officer and tell them that your step-daughter will be turning 21 soon and ask them what can be done to expedite the AOS application.  You could also put a large note on the front of your AOS package stating “Possible Aging Out Case”.

JJ, you said you had all the forms to start the process.  You need to read what is required and get all the supplemental documentation together for the AOS package.  It can take a long time to get it all together.  Especially getting your wife’s name on your checking, savings, lease, utility bills, etc.  You will also have to have pictures of the wedding.  I hope you are aware of all that is required.

Good luck in this process
John

 

[William3rd]

Not just since CSPA- they have been denying K2 who have aged out for years.

Contact AILA for a local attorney referral so you are ready to start on her arrival.

I do not see eligibility for a student visa since she arrives in the US as a potential immigrant.

[Ronnie]

I haven't posted in ages but thought I'd bring to everyone's attention that it's possible to take on the USCIS in federal court and win without an attorney.  We just did!  Please read the judge's thoughtful and finely-written ruling, ordering the USCIS to adjust my 24 year-old step-son's status and pay our costs.

http://immdaily.com/pdfs/Verovkin%2012-21-07.pdf

Let me emphasize what I used to argue before...There are no time limits on adjusting status...neither for the K-1 nor the K-2 who gets his/her elibility through the parent.

I received a phone call from a board member of AILA last week.  After congratulating us, they said if the Government appeals they will provide us a Pro Bono appellate lawyer in the 9th circuit and write an amicus curiae.