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

[Ronnie]

Viking, so much will happen before next summer that I would not put you on the worry seat.  I know that the USCIS is reviewing intensely their policy...I have seen to emails from the deputy director that say they are "focused" on the matter right now.  It may not be a few days as I predicted in my enthusiasm yesterday, but it could happen in weeks.  I don't believe they will continue to fight...After Akhtar v. Burzinsky ruling in the 9th Circuit, they waited a few months before changing their policy to match the court's decision.
Let's just say in your case, that your worry meter should be taking a big dip now.

[mlugo]

Ronnie,   based on recent developments would it be possible for a K-2 to file for adjust of status after the age of 21 if arrival to US was before 21?  The Colmeras case showed that the adjust of status was filed before the age of 21,  but would the case have had the same result had the adjustment of status been filed after the age of 21?  If an adjustment of status can be filed pass the age of 21,  then would it be too late for those who did not do so because it was assumed not possible?  Also,  does the issue of overstaying the visa play any role in a pending case getting denied?  I hope to hear from you or anyone that can help clear my doubts.   

[Ronnie]

Good questions Mlugo!

Forgive me first off for not knowing the Colmeras case..where was it?

However, in January, the 10th circuit, citing our Verovkin decision agreed that there is nothing in law that puts a K2 to an age test in the adjustment of status context.  In short, once the visa is issued and they have entered the country before reaching the age of 21, nothing prevents them from adjusting status if their K1 parent is adjusted.  The K2 does not need separate basis for adjustment from his/her parent's basis.

As to overstaying the visa.  The only way a K-1 or K-2 can possibly overstay the visa is if there is no marriage within the 90 days following entry to the US citizen who sponsored the visa.  The law only says that they must leave the country IF the planned marriage does not occur within 90 days of entry.  Let me also point out the visa is, in essence the ticket to enter.  It's good for six months from issuance.  Once entry occurs, the visa is consumed and the person is admitted for a period of 90 days in order to perform the marriage.  If it's not performed the K1/2 must leave.  It is understood that if the marriage is performed, the K1/K2 are legally present.  They have overstayed nothing and while their exact status is somewhat confusing what is clear is that they have not overstayed.

[mlugo]

Thanks for your reply!!! Your answers have been very helpful. I actually misspelled the name of the case I made reference to.   It was actually the WLADIMIR COLMENARES CARPIO case which you mentioned in the reply.

I just want to be sure....Citing the January decision,  are you saying that if a K-2 enters before 21,  then they can still FILE for their adjustment 5yrs later if the marriage was performed with 90 days of entry?  Would that be too late to file?

Do you normally exchange e-mail info,  or do you only respond via forum?   

[Ronnie]

We filed our I-485 applications more than a year after the marriage.  Contrary to some official handouts from the Dept of State and other unofficial sources, there is nothing in law that sets a time limit.
As a practical matter though, most states will not issue driver licenses with a document proving legal status such as an Employment Authorization Document (EAD) and employers will need to see the EAD before offering employment.  Therefore it is best to file as soon as practicable.
I have seen some couples try to file the I-485 before the 90 days are up.  That is nonsense but I understand their desire to try to be safe rather than sorry but remember that the I-864 Affidavit of Support is part of that package and the citizen should not rush into that before he's ready.  It's a big responsibility that could last many years even if there is an early divorce.
File when you're comfortable in the marriage and not a day earlier.

[cris]

any update in this topic?

[tfcrew]

I found this with particular attn to.....

.. the Court noted that USCIS’s approach “is fundamentally unfair.”  For example, under the USCIS approach, even an individual who obtained a K-2 visa and applied for adjustment of status several years before his or her twenty-first birthday would have no way of knowing whether the entire lengthy process might be wasted because of the time that the application “languished in the agency’s filing cabinet.”  Congress could not and did not intend for such an unfair practice.

http://www.rreeves.com/print.php?newsId=607

[Ronnie]

A K2 case was won in Immigration Court this year and the Gov't did NOT appeal.  Progress is being made at a snail's pace but it's progress nonetheless.

[clifdyvr]

Hi Ronnie!
Glad to see you still check in here.
Was that the case in Chicago that Yu Mei told me about?...

[Ronnie]

Ron, I don't know who Yume told you about.  It was Veronika's case..the Monro family

[Ronnie]

It's over.  At long last, the Board of Immigration Appeals has ruled on the K2 age out issue.  In so doing, it agreed with the Carpio decision that was handed down in the 10th Circuit Court of Appeals.  The Court's ruling in Carpio was based upon the Verovkin ruling from the Northern District of California.  Dmytro Verovkin was my K2 who was originally denied adjustment because he was was deemed to have "aged out"..meaning he had already reached the age of 21 before the adjudication of his AOS application was accomplished.


Having consulted several immigration attorneys, most of which agreed with the government, believing the myth that there is an age test of a K2 at the time of adjustment of status, we were left with little choice but to file our own case, pro se, without the aid of an attorney.


There are several lessons here.  One is that many immigration attorneys do not excel at their own craft.  Another is that government agencies, at least their legal departments, are unconcerned about doing the right thing.  But the final lesson is that when you know you're right, fight on, don't give up and ultimately truth and reason will win out.


Here's the text of the decision (Matter of Hieu Trung LE)..
http://www.justice.gov/eoir/vll/intdec/vol25/3719.pdf


Ronnie

[viking]

I dont believe it !!!!! I am trying to wake up, drinking my coffee on a rainy Friday and come across this. Wow. Wow. Wow. This means my wifes son, who was neither approved not denied from about one month ago, will now get his green card sometime in the next few weeks ( i hope). I just hope that the adjudication officer took her sweet time and will make her decision NEXT week. Thank you Ronnie

[Vaughn]

This is the best news I've read in the Immigration and Visas section inquite some time. Ronnie, you are to be commended for not giving up the ghost - and pursuing a course that caused seasoned immigration attoneys to predict failure.
 
Viking !! Elvira and I are so happy for you. May the GC arrive swiftly after all your inquiries and prodding.     

[viking]

I am happy to report that my step son received his NOA today showing approval of his green card application. He could not be happier. I hope this works out for all the others in this situation.

[Ronnie]

Viking,
You were a wise man indeed to consider are the steps and time lines well ahead of the process. I hope your wife appreciates the time you put in to studying the issue and emerging from the fog victorious
-Ronnie

[clifdyvr]

Congratulations, Viking!
At this point I can only imagine how you must feel. I hope that I will soon report similar results in our case, and will know the feeling of relief you are now experiencing.
Best wishes to all!
Ron G.

[Vaughn]

I don't believe Viking will shoot me for announcing this, but his stepson received his GC in the mail yesterday. Excellent news for sure - as many plans for the near future hinge on this step.
 
Congratulations, Viking & family.... !!!

[Ronnie]

I don't believe Viking will shoot me for announcing this, but his stepson received his GC in the mail yesterday. Excellent news for sure - as many plans for the near future hinge on this step.
 
Congratulations, Viking & family.... !!!

Excellent.. I hope we get more such reports in the weeks ahead.

[jj]

Finally some common sense that they would rule on this crack in  the system.  I know it is a relief for Viking and the others out there dealing with the k-2 issue.  I dealt with this with my step-daughter, having to get a lawyer and congress person involved to come within a month of her turning 21 just before adjudication.  The lawyer had no clue about k-2 age 18 or 21 facts and we had to educate him with some legal memos and Ronnie's deligent work  and his final court decision.  -jj

[Son of Clyde]

Congratulations Viking. Great news.

[Ronnie]

Finally some common sense that they would rule on this crack in  the system.  I know it is a relief for Viking and the others out there dealing with the k-2 issue.  I dealt with this with my step-daughter, having to get a lawyer and congress person involved to come within a month of her turning 21 just before adjudication.  The lawyer had no clue about k-2 age 18 or 21 facts and we had to educate him with some legal memos and Ronnie's deligent work  and his final court decision.  -jj

JJ, the 'crack' was a hairline one that some ill-intending attorneys at USCIS decided needed to be exploited.  Why?  To understand the answer one must to understand the self-serving view that is held by many in the judicial system.  More demand for services = more and higher fees.  No rational-thinking person inside or outside the Government could have ever honestly thought that the law was written and intended they way they were pretending ti to be.


The embarrassing part is that newly arrived immigrants were virtually terrorized with no hint of remorse from the people who did it to them.


-Ronnie