Girona40

I can take any amount of "rude" if it helps my son. I actually wasn't offended - I understand that you are trying to help and I appreciate that.

I am totally confused though by your posting - this is what it states on the USCIS.gov website.

What is an "Aging Out" case?
An "Aging Out" case is a situation referring to a person’s petition to become a permanent legal resident as a "child" (for definition please see child as defined in the Immigration and Nationality Act), and in the time that passes during the processing of the application, the "child" turns 21, and "Ages Out."

The CSPA was enacted on August 6, 2002. This law amends the Immigration and Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. This law changes who can be considered to be a "child" for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by the U.S. Citizenship and Immigration Services (USCIS).

The USCIS caseworker, supervisor, District Director, Senator of Virginia, congresswoman's aide in West Virginia (we moved), our attorney in Washington DC and other attorney's with similar cases to this, are all saying that my so is an "age-out" case because his case for AOS was not adjudicated by the time he turned 21. To me this seemed ludicrous - in the UK an applicant's age is technically "frozen" at the time of the application, not when the government department finally gets round to dealing with it.

If you are right - it would make me a very happy woman, however, I am now totally confused!

Folinskyinla

Hi:

I have posted an explanation in other strings on this. I don't believe that there is any direct authority on this issue, but it can be implied from other authority. Primarily, the old [pre-1986] "Dixon" and "Dawson" cases from the BIA should be examined. In those cases the K-1 had married within the 90 day period but the marriage broke up by the time the adjustment came around -- the ruling was that the NON-immigrant admission imposed the conditions of eligibilty for adjustment. His age governed his eligiblity for the K-2 classification -- he obtained his visa and was admitted to the US while under 21 years of age. At that time, the condition for HIS adjustment was that YOU entered on a K-1 and married within 90 days. There is nothing in the statute which states he has to be under 21 at the time of the adjustment.

Furthermore, a K-2 is quite different from an I-130. As noted, no I-130 is involved in a K-1/K-2 adjustment. Furthermore, under YOUR facts, your son would not have been eligible for I-130 treatment because he was over 18 when YOU married.

This is something quite basic. As you note, the CIS has NOT made an "official" determination. The "un-official" indication you have received happens to be wrong.

What appears to perhaps to have happened with you is that when you said "age-out" to your attorney, she reacted with the remedy to age out rather than first questioning whether the "age-out" issue applied at all.

CSPA is not a remedy to your percieved problem. However, you do perceive the problem incorrectly -- you have to step back and ask -- is there an age-out problem at all.

lovenlife

Thanks I will forward this off to our attorney.

scatty

Thank you for your reply , maybe you were trying to be cruel to be kind? but this is not a solution!!!!!!!!!!!

Merely telling this lady, she does not have a cat in hells chance with CSPA so

What are her options?

Rete

May I ask what your interest in this thread is. It appears that you only wish to contribute to the postings in a manner which is negative and not at all helpful to anyone.

Your interpretion of some posts is just that your take on the reading. I would suggest that you sit back and allow the OP and Mr. Folinskyinla to continue their postings without your interference. BTW Mr. F. has clearly stated what her options were. The matter is not CSPA and as such her attorney should be the one to rectify the incorrect useage by the CIS with the CIS. That is what they are being paid for.

Rete

lovenlife

Both cases are listed here, if anybody is interested:

http://www.usdoj.gov/eoir/vll/intdec/lib_vol16idx.html

scatty

My postings are not (as you say) negative!! I have suggested H1B, get married to USC, buy a business for son E2 visa

This lady does have an attorney but is crying out for help on this forum and some of the comments have been unhelpful and rude.

As you ask

My son is a CSPA case and I too have spent many hours reading up on this complicated law in order to see if my son is protected and therefore trying to see if I can help this lady

Sons case is also in no mans land even though his case was approved a year ago, the consulate say they never recieved it etc, etc.,

So I do have a vaild interest, and a kind concern for any mother who has problems with protecting their children

May I ask if you have any suggestions for this lady? Thank goodness the lady concerned is not upset at comments made although I would be if it were me asking for help

Hopefully this thread can now get back to the orignal post and maybe someone can suggest if this lady does have any other options, apart from those previously mentioned

lovenlife

Ok from what I gather from the Dixion case this is the relevent statute:

So under Sec. 214.2(k) Spouses, Fiancees, and Fiances of United States Citizens. (Heading amended 8/14/01; 66 FR 42587)



(ii) Nonimmigrant visa issued on or after November 10, 1986. 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 status 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. (Amended 8/14/01; 66 FR 42587)


So is approval of the application the same as adjudication? Or does it even matter, under sec 216 there is no mention of age in relation to the adjustment of a "child" to conditional LPR status.

Sorry I'm just trying to figure this out here.

ian-mstm

Your mother was wrong.


CSPA doesn't seem to be an option for her. Why do you keep suggesting it is?


Please don't ever forget that the attorneys here post because they want to... they are not obligated in any way, shape, or form to do anything! If they give too specific a response, it could be implied that a lawyer-client relationship exists... and that is simply not the case.

Ian

Rete

An H-1B requires one to hold a degree in a field that is listed under the categories which can utilize the HB visa. The son might not hold such a degree. Suggestion of marrying a USC is a suggestion to commit fraud, IMHO, as it advocates marrying for a green card. Not everyone has a million plus to buy a business.


No, I do not have any suggestions for her or yourself. I do wonder why your child did not adjust before age 21 and why they do not fall under the CPSA.

Rete

scatty

[QUOTE=Rete]An H-1B requires one to hold a degree in a field that is listed under the categories which can utilize the HB visa. The son might not hold such a degree. Suggestion of marrying a USC is a suggestion to commit fraud, IMHO, as it advocates marrying for a green card. Not everyone has a million plus to buy a business.


Hi

The son may well have a girlfriend and even be engaged, so if he were to marry a USC and could prove a relationship then it would not be fraud

The son (may well already have a degree) if not he could always get a student visa, then degree, then H1B

You do not need to invest millions to get an E visa. A friend of mine bought a billard's business for $120,000 USD, signed a lease for 5 years on place of business all subject to visa approval

Mind you, another option;

If they have approx $500,000 to invest could they not get a special visa, which leads to green card?

scatty

[QUOTE=ian-mstm]Your mother was wrong.


Mothers are never wrong!!!!!!!!!! Hope you never told your mum that


CSPA doesn't seem to be an option for her. Why do you keep suggesting it is?

I am not keeping suggesting it!!!!!!!!!


Read my posts , I have come up with a few possible alternatives

Ray

[QUOTE=scatty] No permanent residency with the E-2

EB-5 ... thats a joke... there is 10K available per year
in 2004 they issued 126.. virtually impossible to get ..

lovenlife

Still no word from our lawyer, I'll give him a ring today to see if he has had a chance to read my email. I basically asked him to look into if our son was an age-out at all. I did mention the two cases, and if he could have a look.

We are just so tired of this whole process.

Thanks All

Folinskyinla

Hi:

BTW, the actual holdings in Dixon & Dawson are under prior versions of law [for example, the "viability" doctrine has been dead and gone for some time] -- however, the principle I cite the cases for is that the conditions of the NON-immigrant entry are what controls and that the ADJUSTMENT is not the same as required in the I-130 context.

The fact that a K-2 can adjust while 20 years of age when parent married is an example of this dichotomy. The absense of age-out on adjustment is the same.

BTW, I'm surprised that I keep to having write on this -- it appears quite obvious to me.