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

[William3rd]

many, many, many, going back into the 80s. CSPA didnt apply to K visas; it was applying to I130s.

[Ronnie]

Back that  far?  Why didn't anyone fight it?  No cases or BIA appeals until last year.

[Ronnie]

A near disaster seems to have been averted in Seattle last week when an Immigration Judge agreed that our Verovkin case, while not binding, was to be followed absent any good arguments by the government against our District Court ruling that K-2s do not age out.

I continued to be mystified by the callous ignorance of USCIS... ignorance of the very laws they are supposed to be following.

[William3rd]

CSPA was not intended for Ks. Ks began back in the 40s under the War Brides Act. CSPS was directed at all the poor Filipinos that were aging out under I130 delays and was able to give them extra time to account for the delays in processing.

INS knows that it isnt binding on all jurisdictions. I am sure that there are still areas that refuse to enforce it at all and see if the applicants choose to go to court.

Apparently, the government attorneys didnt know their history. .

There is still an anomaly in process on the step- issue. Perhaps it is time for Congress to drop age 21 for K2 completely and make it 18

[Ronnie]

CSPA was not intended for Ks. Ks began back in the 40s under the War Brides Act. CSPS was directed at all the poor Filipinos that were aging out under I130 delays and was able to give them extra time to account for the delays in processing.

INS knows that it isn't binding on all jurisdictions. I am sure that there are still areas that refuse to enforce it at all and see if the applicants choose to go to court.

Apparently, the government attorneys didn't know their history. .

There is still an anomaly in process on the step- issue. Perhaps it is time for Congress to drop age 21 for K2 completely and make it 18

Bill,
I'm not a lawyer, of course, but over the course of the past few years, I've invested hundreds of hours in researching this narrow issue of the K-1/K-2 visa....out of necessity, I might add.

As to your comment.... CSPA is irrelevant.  Irrelevant not because of the Johnny Williams memo from 2002 but because congress understood that K-2 had no need of protection from aging out.  I believe they were perhaps unaware of the adjustment cases that were being improperly denied.  Prior to 1986, I can't imagine any cases were aged out because adjustment was automatic upon timely marriage of the K-1 to her USC petitioner (I-485s were still required but for recordation purposes).  When the sentence in INA 214(d) that mandated recordation was struck by the International Marriage Fraud amendments of 1986 so that all immigration by marriage would be put through two-year test, somebody got the bright idea that K-1/2 now must "adjust" status under section 245 and applied the narrowest interpretation possible resulting in the absurdity of aging out children because no visa was immediately available to the Over 18 child as it was for the K-1 spouse. 
Our judge saw the absurdity and ruled that the K-2 get his/her immediately availability as a derivative of the parent.  It's a reasonable interpretation and removes the absurdity.
Therefore, whether one believes that K-1/2 adjust under section 214(d) (as has always been) or 245 (as our court interpreted) is of little practical consequence and results in the removal of any perceived anomaly.
As to your philosophical point about whether 18 or 21 should be the cutoff age for K-2 visas, the older age makes more sense as the realities of life make it unreasonable to believe that an 18 year old is able to be self-sustaining without a parent. 
Further, even if K-2 visas were issued only to age 18, what happens to the child who turns 18 the day after receiving the visa.  If the marriage does not occur before the child reaches 18, he would also be denied under the prevailing notions of what 245 means.

PS...I posted this Seattle ruling to point out that far from having short coat tails, the positive impact of our case is being felt in cases all over the country - a fact that is a source of satisfaction and compensation for the hours spent. 

[William3rd]

Whatever- Personally, I think that the cutoff should be narrowed to 18 so that there is continuity with the other sections of law.

Perhaps the govt will do a better job if the case comes up in another jurisdiction. Sounds like they were woefully underprepared.

[Ronnie]

Bill,

It does seem clear to me that you disagree with the ruling.  When I asked you before you said you agreed, but that seems not to be the case.  When you say "they were woefully unprepared" who are they?  The gov't attorneys I assume.  Did you not gather from the IJ ruling in Seattle that they argued that the I-485 must have been filed before the 90 days were up?  That's a new one.

Fact is, they're grasping at straws..underprepared or not..there's no there there.

[jj]

Ronnie,  what case was this in Seattle?   My step-daughter's case is still in FBI check. (along with my wife's).   My info pass was unsuccessful because it is not even at local office yet, so they could not set up any interview. That was almost 4 weeks ago.  We have call USCIS 3 times.  My attorney confirms case is still in security checks.  My AOS status does not show up and never has on-line.  We received AP and EAD fairly quickly but that does not come from same center. I have contacted my representative and we have signed papers to authorize her to check into it.   It seems like k-1  application all over again , where the government had us in administrative processing for extra 3 months.  I thought they already did an FBI check last year, and it would be quicker now.  Why are they wasting our tax payer money again.  They could also use our tax money to have the INS lawyers spend time on illegal aliens rather than 21 year old k2 's who were told they could be here legally and AOS with their parent.  We only hope my congress person can help us get it out of name checks and into an interview in Charlotte( which already running behind).    -jj

[Ronnie]

Ronnie,  what case was this in Seattle?   My step-daughter's case is still in FBI check. (along with my wife's).   My info pass was unsuccessful because it is not even at local office yet, so they could not set up any interview. That was almost 4 weeks ago.  We have call USCIS 3 times.  My attorney confirms case is still in security checks.  My AOS status does not show up and never has on-line.  We received AP and EAD fairly quickly but that does not come from same center. I have contacted my representative and we have signed papers to authorize her to check into it.   It seems like k-1  application all over again , where the government had us in administrative processing for extra 3 months.  I thought they already did an FBI check last year, and it would be quicker now.  Why are they wasting our tax payer money again.  They could also use our tax money to have the INS lawyers spend time on illegal aliens rather than 21 year old k2 's who were told they could be here legally and AOS with their parent.  We only hope my congress person can help us get it out of name checks and into an interview in Charlotte( which already running behind).    -jj

JJ 
The name check is not holding anything up except final approval.  My wife's name check was completed 8 months after the interview.  There is no reason your file is not at your local District office by now.

You raised a good point about the duplicate FBI name checks.  USCIS has completely lost sight of what a K-1 visa is.  They are treating K1/K2 adjustments like any other and disregard the unique nature of the visa which requires that all background checks be done even before the visa is issued.  Under the program the way it was and is supposed to be now, the marriage is the last step in the process and the aos interview an dispensable formality.

My hope is that one day they sit down and look at the history of the fiance(e) visa and realize how they have morphed it into something totally different from what it was and is intended to be.

Keep pushing for a expedited interview.  John, in Mississippi had to push twice before they finally agreed to the expedited interview.  They had their green cards two weeks after agreeing to the interview.
That was unusually fast but it shows how quickly things can be done if they want to do it.

[jj]

Ronnie,  I will certainly try info-pass again. They told us everything was still in Missouri Service Center on first visit.  We sent it to Chicago lockbox intially with "Please Expediate" with age out as reason.  I assumed it goes to Missouri from there, and then Charlotte, but does I-485 go to  local office right after we receive I-485 receipt?   

[Ronnie]

JJ,
You said you filed the I-485 in early November.  There is no reason for the file to still be in MSC five months later, short of a major screw up somewhere.
Lean on them hard in Charlotte..they most certainly have the file there.

[Jet]

JJ 
The name check is not holding anything up except final approval.  My wife's name check was completed 8 months after the interview.  There is no reason your file is not at your local District office by now.

Not anymore supposedly, read this posted by Muckraker a couple of months ago!

You raised a good point about the duplicate FBI name checks.  USCIS has completely lost sight of what a K-1 visa is.  They are treating K1/K2 adjustments like any other and disregard the unique nature of the visa which requires that all background checks be done even before the visa is issued.  Under the program the way it was and is supposed to be now, the marriage is the last step in the process and the aos interview an dispensable formality.

I've been round and round with BCIS on this one, as our namecheck took 4+ years to complete. They assert that the pre-interview name check is just a cursory examination, while the pre-GC check is much more intensive and thorough. 

That was unusually fast but it shows how quickly things can be done if they want to do it.

We're starting to wonder if we'll have to use Kolya (4yrs old when he got the K-2, 9yrs old now) aging out as a basis to finally get our GCs issued   
We have been to USCIS and verified that the order Muck posted is in effect currently. Our problem now is that it affects approx 59,000 people who are in the same boat we are. With Lil's background check getting the "all clear" on Valentines day and the infopass clerk promising to put an 'expedite' on the case, we thought issuance was imminent, a subsequent infopass appointment revealed that with this influx of new work coming from the federal judge's order, all expedites have been canceled in the Miami Svc. Ctr. and so, it seems we'll be dishing out for a FIFTH Advance parole (x2) and a FORTH Employment Authorization. :burnedup:

[Ronnie]

Officer Nelson (nice guy) from USCIS called just a few minutes ago to say that Dmitry's I-485 has been approved and he is ordering his greencard.  The officer verified our mailing address and said we should be receiving the card in about 2-3 weeks.  Looks like the long struggle is over for us too, or at least this chapter.

For those who didn't see my thread on K2 don't age out.  We were denied intially because of his turning 21 before the AOS was completed.  We sued pro se in Federal Court and won (Verovkin v Still).  Judge says there is nothing in the law requiring an age test of a K2 upon adjustment..only upon visa issuance.

Our case has helped others avoid deportation as IJ's are unwilling to go against our judge's ruling.

[jj]

Glad to hear your good news Ronnie.  Your case was very encouraging to us in  my step-daughters case.  She was to age out in July.  I sent your court case to our attorney and our congress person.   Both were instrumental in getting the interview before she "aged out".  We went in for interview (with attorney) in  May, and brought so much proof of relationship that she stopped asking for more.  Their  2-year green cards should be here in a week or so now.   We would have had good case against USCIS if  otherwise turnout.  Now we will be preparing for removal on conditions in 2010.
I least you and family can relax a little now too!

[Ronnie]

Congrats JJ! 
I hadn't seen an update from you...guess I missed it if you posted it in another thread.  It's gratifying to hear that our case is helping a bunch of other people too.

[Ronnie]

Speaking of others who are in need of help on the age out issue.  I've been helping a girl in Chicago.  She's from Vladivostok and is the same age as my stepson.  The were both interviewed and denied AOS at about the same time by completely different field offices.

However, the rationale is always the same: section 245(a) requires that there be an immigrant visa immediately available in order to be eligible.  A spouse has immediate availability and so does a child/stepchild.  However, in order to be a child of the USC the stepchild must have been under 18 when the marriage to her/his parent took place.  Since that didn't happen there can be no immediate availability of an immigrant visa, thus no eligibility to adjust.

What the USCIS has a hard time explaining is how they adjust K2s under 21 who were over 18 when their parent married the USC and so therefore there is no relationship to the USC which would make the immigrant visa immediately available.  They have a directive from hq to adjust 18-21 year olds but no explanation as to how to reconcile that action with their stated legal position.

The answer is, as our judge found, that the USCIS legal position is absurd and wrong.

Back to the K2 girl in Chicago.  Last week the judge, as he signaled he would do, ruled that he has no jurisdiction over the matter since the REal ID act stripped him of juridiction over discretionary decisions by the agency and Adjustment is deemed a discretionary decision.  Where the judge is wrong, and we so argued, is that the law only applies where there is actual execise of discretion.  A denial based on aging out is not a discretionary decision as the USCIS says it's only following the law and has no choice but to do so.  Thus, it's a legal interpretation as other courts have held in Jiang and Verovkin and several other K1 adjustment cases such a Choin v Mukasey which was argued before the 9th circuit court of appeals last month. 

The good news is that I contacted the American Immigration Law Foundation (AILF) and their director is looking at the case right now with an eye on representing the K2 pro bono in the appeal to the 7th Circuit.

It continues to baffle me why, after being admonished by courts and congress to resolve ambiguities in favor of the alien, that the USCIS continues to consistently do the opposite.

[Ronnie]

See below.

[Ronnie]

Just a few days ago, a very articulate, bright and honest Immigration Judge in Minnesota, reverse herself.  A year ago she decided with the government that a K-2 had aged out.  After our Verovkin case, the immigrant's attorney filed a motion for reconsideration with that same judge and used some of the same arguments I had made in Verovkin.

A miracle happen!  The judge reversed her earlier ruling and decided that indeed there is no requirement of law that a K-2 be under 21 as part of the adjustment of status process. 

The coattails of our decision seem to be getting longer all the time.. First Seattle, now Minneapolis.

Here's the ruling for those who want to admire a brilliant  analysis on the part of an immigration judge.  I'm starting to think females are natural born judges. 

PS the "married out" argument is one I used in Verovkin but our judge didn't address it.  This one did address it.  Probably the K-2s lawyer emphasized it, dunno.

[netztilt]

Hi, I'm Eugene, and I'm in the same situation!  On January 2, 2008 I received a letter from USCIS denying my Permanent Residency after it had been pending with Immigration Service since June 30, 2003 because I had aged out. I entered on a K-2 dependant of a K-1 fiancée visa when I was 16 years old and timely applied for adjustment of status along with my mother. My case was frozen for over 4- ½ years while inquiries were constantly submitted by me and my mother, I’ve been to Immigration Service more than 15 times before I turned 21, and as I was coming close to my 21st birthday nobody at Immigration Service warned me or let me know that I need to file I-130 form, so I’ll be covered under Child Service Protection Act. My case was pending because my mother’s background clearances had not yet been completed, while my background was cleared nearly 3 years ago. The sole reason being given for the denial was that I was over 21 years old. Ironically, my mother was approved a month later on February 1, 2008.

This situation is very stressfull and depressing for me, cause I cant work, I cant drive, I cant go to college, basically I cant do anything! I had a good job (I was working for DirecTV as an installation and service technician), I was going to American River College, and Sacramento City College at the same time and I had 3.7 GPA.

I have a clean background record, I paid taxes, I was working and going to college, I was living a happy life, I had dreams and goals in my life, and now everything is gone. It feels like everything I dreamed of and worked for taking from me in a blink of an eye, and I can’t really do anything about it, it feels terrible.

Couple days ago i received denial for motion to reconsider! thats my 2nd denial! now me and my attorney will probably go to federal court, and I will end up paying a lot of money for attorney fees... you don't even wanna know how much

[Ronnie]

Eugene, send me your phone number by Private message.  You're problem will be easy to fix without great expense.
Ronnie

[netztilt]

hey, Ron, how you doing? do you know of any way how could I possibly get a copy of Jiang v. Still, 2007 WL 685700, at *5 (E.D. Cal.) case? Thank you in advance!

[Ronnie]

Yesterday, the 10th Circuit Court of Appeals handed down a landmark decision.  "K-2 must only be under 21 upon entry into the United States."  I expect the USIC will now stop the nonsense in which they have been engaging for several years now.  Any of those of you will legal action pending should contact the government attorney opposing you propose settlement.  It is satisfying to me personally that my case, Verovkin v. Still played a role in the this decision and was cited by the court.  Here's the full text of the court's decision

http://www.ca10.uscourts.gov/opinions/08/08-9536.pdf

[jj]

Ronnie_  Finally a judge with common sense who took the time to actually look at the facts.  Nice work on your part to bring all this to light  and  save some taxpayers money on this beauocratic bungle, and stress on our loved ones.-jj

[Ronnie]

Ronnie_  Finally a judge with common sense who took the time to actually look at the facts.  Nice work on your part to bring all this to light  and  save some taxpayers money on this beauocratic bungle, and stress on our loved ones.-jj

Actually, JJ, there have been many judges who have made the correct ruling but none of them were deemed binding on the USCIS generally.  This case, in which the BIA upheld the wrong view on the Immigration Judge, was probably the reason the USCIS was entrenched. 

Now, this case coming from a 3-judge panel at the 10th Circuit Court of Appeals and overruling the BIA will have broad impact.  I expect a memo from USCIS HQ will be sent out within a few days instructing adjudicators not to consider age as a disqualifying factor for K-2s

[viking]

So if I understand this correctly, if my fiancees son comes here ( after we are married), who was a K-2 to follow in my orginal petition, at age 20, and I file for his AOS (most likely a few months before he turns 21), I should have little to worry about?