K-2s Don't Age Out, Rules Federal Judge

[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.

[William3rd]

Damn right they will provide you an appellate attorney at no charge. If this decision stands, then a longstanding problem area in K law will be cleared up- at least until Congress decides to clarify it further. AILA definitely has an interest in keeping this door open.

[Jet]

This line, sort of jumped off the page for me:

Because it is has no precedential value, it is not entitled to Chevron deference.

My guess would be that if it does go to the appellate level "Administrative Deference" is exactly what the Gov't case will hinge on as it will set precedent and they will argue the statute is ambiguous and/or there is a gap that Congress intended the USCIS to fill. The courts have struggled over whether to give “Chevron deference” to revised interpretations: the Supreme Court has provided several seemingly inconsistent views, and lower courts seem to focus on one or another of these views without grasping the entire problem concerning A.D. 

[Ronnie]

Let's be clear.  There is no regulation that says K-2s must adjust before age 21 and no Operating Instruction exists to that effect.  It is a myth unsupported by statute or regulation that has perpetuated itself throughout the USCIS and has infected 90% of immigration attorneys according to the AILA representative.

As to Chevron deference, the court also pointed out that the defendant's interpretation was unreasonable (reasonableness is a Chevron requirement) at several levels..even "arbitrary and capricious."

[William3rd]

This case has got a ways to go. I am not sure that it is an issue that infects 90% of attorneys. What I see is that it is a rare rare occurance and the alternative of paying for representation in court usually scares off the client from going any further.

However, having said that, the longstanding practice unchallenged for years is that age-out occurs at 21. Anyway, the goverment will have to address the K anomaly for good or bad in the near future.

[Ronnie]

Jet..To address your point about the line that jumps out..and it did me too.  I don't understand or why she wrote it but I'm not a lawyer and perhaps "precedential" has a peculiar legal meaning other than one I would attached to it.  

[jj]

Ronnie- Have you heard any updates or activity from immigrations response yet? -JJ

[Ronnie]

USCIS sent Dmitry a letter telling him to go in anytime for new biometrics, so it appears they have re-opened his case and are moving forward on his AOS.  We had a hearing before the an Immigration Judge two weeks ago pursuant to removal proceedings which USCIS initiated DURING the federal case. 
Our District Judge was peeved about that and on her own initiative issued a new order that those proceedings be terminated. 
The ICE attorney (ICE, not USCIS, takes over jurisdiction when a case is refered for removal) filed a motion to terminate the proceedings but did not tell the IJ why...just said that it was not in the interest of the US Government to continue the proceedings. 
The IJ was confused and seemed shocked that the Government would start then terminate the removal but went ahead and granted the motion to terminate.  So now the USCIS has jurisdiction again and it looks like they're complying with the judge's order. 
The government may appeal but haven't indicated yet.  Attorney Stuart Folinsky's Jiang v. Still appeal should be finished up about the time for appealing Dmitry's case runs out.  Several people, including a former congressman have written the head USCIS attorney suggesting he issue a new memorandum clarifying that K-2's do not age out on adjustment (citing our case)... But no memo has emerged.  Perhaps waiting on the Jiang appeal in the 9th circuit.

[jj]

Sounds positive and I hope it all comes about for you all.  My stepdaughter has received AP and AEP but still will not let us check on line for  her AOS status. (Filed Early November).  Her birthday is July 17 , so if nothing else the new 6 month FBI ruling should kick in in three months.  -jj

[Ronnie]

JJ, You should get an infopass appointment, forget the online case status. Dmitry's hasn't been updated for two years.

Tell the officer you need to get an expedited interview due to age out (better be safe than sorry).

I was on a conference call last year with a small group of k2 age out victims and one who was in your boat..not yet 21.  He had only 3 months to go before her birthday.  He asked for and received expedited treatment and his stepdaughter and wife had there GCs in hand with stil a month to spare.

Don't wait.. Just do it while you still can avert a problem.

[Enot]

So Ronnie, let me get this staight.  Your step son turned 21 during the K-1 process and can now come over on a K-2 visa?

My soon to be step son turned 21 during our K-1 process.  How do I go about getting him here?

thanks for any advice

[William3rd]

No- his step son was here on a K2 visa and then he aged out before his AOS was completed. Your description is of someone who never qualified (aged out before an interview to determine eligibility for a visa)

[Ronnie]

Enot,

I understand that your fiancee has arrived or will soon arrive on a k-1 but her son was denied a visa.  I also understand that he was 20 when you filed the I-129f.  Right?

You might be a test case!

If you marry your fiancee within 90 days and you want to take a shot at getting her son here, then it can't hurt to try a lawsuit to get a judge to declare that your stepson was K-2 eligible but wrongly denied.  If you decide not to marry, then the point is moot.

The judge in our case declined to visit the issue of whether the INA requires the child to be under 21 at the time of the k-2 interview or at the time of filing of the Fiancee petition.  She declined because such a determination was not required in our case, but did point out the the INA is not specific.

However, she went on to express a view that under a doctrine of fairness, which is the key question for congress, the court might have to rule that the only date that is fair is the date of filing the petition for K visa.

You'll need a good attorney willing to push the envelope but the case would be winable if you get the right judge. The Verovkin judge would likely rule favorably were she your judge (which of course she would not be unless you live the northern district of California). 

If you want a recommendation for an attorney, PM me and I'll hook you up with someone.

[William3rd]

Better read FAM and the statues a little bit closer as it applies to I129f in process prior to approval. . . . . was the petition approved or ? ? ? ?

[Enot]

The I-129F will be approved next month.  She had an interview but was missing 1 document.  The embassy said the visa will be approved when they see this document.

[Ronnie]

William,
As you know, the Field Agent's Manual is not going to persuade a court.  The Act itself is silent as to the precise time a child is tested for age.

However, the application instructions read:

"NOTE: Unmarried children of your fiance)e) or spouse who are under 21 years of age and listed on this form will be eligible to apply to accompany your fiance(e) or spouse."

We should not discount form instructions as not having the weight of law since, of course, they are incorporated into the regulations that require the form to be filed. See 8 CFR 103.2(a)(1)

One could argue the the above quoted text means that the child must be under 21 at the time the I-129f is filed or when the DS-156 is filed.  However, it is difficult to interpret the text to mean that the child must be under 21 when the application is adjudicated or before entry into the United States.  I know the latter is the current practice but such practice does not appear to have any legal backing.  The courts have required ambiguous law to be interpreted in favor of the alien.

[Enot]

Yes Ronnie, this how I interpreted it.  I even called the USCIS shortly after I submitted the documents and again just before they were approved.  Both times they said her son would be able to arrive even though he turned 21.  I was shocked when the embassy said her son couldn't arrive with her.  I wish I would have recorded these phone calls!  Now I am in the process of getting him a student visa. 

[Ronnie]

Enot, was her son still under 21 when the DS-156 was filed?
(That's the actual visa application that was filed by them directly with the consulate after your petition was approved). 

[Ronnie]

As to the phone calls you made, even if you had recorded them the answers given by the CSRs would have not effect.  I'm told that the people are assigned to the call center as a training tool.  In other words, their answers are frequently wrong and carry no weight.  Sometimes the answers may be correct but don't match currently policy but again...no weight.  Ditto for the IRS.

[Enot]

No, he turned 21 about a month before the DS-156.

I understand about the phone calls but at least it would give the courts an idea of how vague the immigration laws are and how easily they can be misinterpreted.  It couldn't hurt a case anyway.

[William3rd]

Uhhh- I thought I was referring to the Foreign Affairs Technical Manual. Silly me.

You will be lucky if he qualifies for a student visa since he will not be a temporary non immigrant intending to return home after a short term visit to the US for study.

[Enot]

The only qualifications are passing a TOEFL test, being accepted by a college, and a US embassy giving him a visa based on the first 2 and my show of support.  I have heard it is an easy and quick process. Many young people do this every year.  He takes the TOEFL test in 6 days.

[Ronnie]

Uhhh- I thought I was referring to the Foreign Affairs Technical Manual. Silly me.

You will be lucky if he qualifies for a student visa since he will not be a temporary non immigrant intending to return home after a short term visit to the US for study.

Bill,
My mistake as to the manual but isn't it true that operating manuals are of no interest to judges whose job it is to interpret the law?

Enot, Bill might me right about the difficulty of getting student visa after being denied a K visa.  An indication that a nonimmigrant applicant might not return to his home country could be a basis for denial of an otherwise meritorious application.

The fact that the DS-156 was filed after his 21st birthday doesn't blow the case out of the water but it does give the judge some grounds for denying.  I would still fight on the bases already listed though.  Show your lady you're rolling up both sleeves on her (and her son's) behalf and if you win, you be an hero.  If not, you'll at least show you fought a good fight for her.

[Enot]

Enot, Bill might me right about the difficulty of getting student visa after being denied a K visa.  An indication that a nonimmigrant applicant might not return to his home country could be a basis for denial of an otherwise meritorious application.

When you get a student visa, you must have a place of residence in your home country.  So there is no indication of not returning to his home country.  Also student visas are good for 1 year and must be renewed plus a certain GPA must be maintained.

He will also be studying to be a Certified Financial Planner (CFP) which is a "title" that is readily accepted for a K-3 with the USA.  If he becomes a CFA, then he doesn't need my assistance to get a K-3.

[Ronnie]

Well the time for a government appeal has passed and no appeal has been filed.  I've submitted our bill of costs to the clerk.  Gee it's too bad no attorney wanted to take our case...the could have made at nice fee, reimbursed by the government.

Wm..  You wrote that the practice of requiring K-2s to be under 21 when adjusting goes back years.  I can only trace it back to 2002 and the Johnny Williams memo on CSPA wherein he casually mentions that K-2s can't take advantage of CSPA.  The implication that he left was that K-2s age out on adjustment.  His memo has been quoted in some of the USCIS denial letters.  Do you know of any cases prior to CSPA?

The case in Chicago is now at the stage of the Court granting/denying a motion to dismiss for lack or jurisdiction by the government or granting/denying Plaintiff's motion for Summary Judgment.

Plaintiff has been notified to appear before Immigration Judge for removal proceedings on the 21st.  Hopefully the judge will make a favorable ruling before then.