Originally Posted by Girona40

I would just like to thank you for the advice you have given myself and my husband. He is more "au fait" with all this than I am, simply because he looks at things more logically than me. As a woman I am dogged by the old emotions getting in the way and I just want to scream or cry!

I do see what you are saying and it is the best news we have had in years. Why nobody has ever pointed this out to us before, or why we didn't think of it, I don't know. Our attorney has been busy for the past few days and we haven't been able to speak to him about it. He did e-mail and say he hoped you were right and would look into it.

I would love to just find a document - any document - that confirms that K-2's do not age-out. If there was a document somewhere, a Court Decision maybe, anything that could show us in writing that this is actually the case. I know it is the "silence" of the statute that you refer to, but it would be nice to see something that confirms.

The waiting to speak with our attorney is killing me and my husband - I am curious to hear what he has to say about it. We did, indeed, go to him with Michael as a "possible" age-out, according to the USCIS caseworker. It would have been nice if he had checked that he was "actually" an age-out. But even if he had tried to find out, we have not had a response from the USCIS in years, so it is unlikely he would have had a reply.

We really can't thank you enough.

Originally Posted by Folinskyinla

[Further BTW, my brother and I shared office space 20 years ago. The building sold which resulted in a huge Proposition 13 property tax reassessment. The new landlord passed on the INCREASED property taxes to the tennants. The amount was so huge, it hurt. And it seemed to be justified by the terms of the lease. My brother could not see a way out of it and at first neither could I. That evening, I called Barry and stated "The assignee steps into the shoes of the assignor" which is a very basic prinicple of contract law learned in the first few months of law shcool. Barry went "what?" and I replied "think about it." The next day, Barry asks "are you saying we only have to pay our portion of OLD landlord's taxes?" and I nod yes. Barry: That is so stupid, its brilliant! The landlord let us get away with that on condition we not tell any other tenant.].

Originally Posted by hcj1440

LOL... my mother always told me never to rent to an attorney, no matter how good their credit was ;-)

Originally Posted by Folinskyinla

Hi:

Out of curiosity, I tried to find something in writing, including the old "OI's" and in our office copies of "Kurzban" -- to be quite frank, I couldn't find anything. However, Kurzban stated that CSPA does not apply to "NIV"'s such as K-2. The "NIV" means "non-immigrant visa." This is perfectly consistent with my statement that he had to get the visa and enter the US before age 21. Again, there is silence on the age-out of adjustment.

BTW, quite often the obvious will NOT be reduced to writing or be the subject of case law.

[Further BTW, my brother and I shared office space 20 years ago. The building sold which resulted in a huge Proposition 13 property tax reassessment. The new landlord passed on the INCREASED property taxes to the tennants. The amount was so huge, it hurt. And it seemed to be justified by the terms of the lease. My brother could not see a way out of it and at first neither could I. That evening, I called Barry and stated "The assignee steps into the shoes of the assignor" which is a very basic prinicple of contract law learned in the first few months of law shcool. Barry went "what?" and I replied "think about it." The next day, Barry asks "are you saying we only have to pay our portion of OLD landlord's taxes?" and I nod yes. Barry: That is so stupid, its brilliant! The landlord let us get away with that on condition we not tell any other tenant.].

Originally Posted by lovenlife

Folinshyinla, thanks again for all your posts, encouragement, and especially the information you provided. Our lawyer sent me an email, and he will be calling me today, so we may discuss this.

To everyone else, thank you as well!!! My wife and I just want this nightmare to end. It really puts a horrible strain on the whole family, as we just want to get on with our lives and be happy, productive, and normal (ok that’s a stretch ;-).

I will reply back after we hear from our lawyer.

Originally Posted by Folinskyinla

Hi:

Working something else not related to "K" visas, or even adjustment of status for that matter:

The answer lies in the interpretive maxim of "expressio unius est exclusio alterius." My memory for hoary Latin phrases is pretty bad and I tend to avoid their use. But I DID use the maxim in my discussions without having to name it.

Originally Posted by bionomique

Translation: The express mention of one thing implies the exclusion of another. Oh God, I use latin all the time! Do that mean that it is implied that I am hoary?

Originally Posted by meauxna

ARgh... Must....leave...that..one...ALONE!
ungh.

whew.

Originally Posted by Folinskyinla

Hi:

Working something else not related to "K" visas, or even adjustment of status for that matter:

The answer lies in the interpretive maxim of "expressio unius est exclusio alterius." My memory for hoary Latin phrases is pretty bad and I tend to avoid their use. But I DID use the maxim in my discussions without having to name it.

Originally Posted by bionomique

Oh God, I use latin all the time!

Originally Posted by scatty

Hi Lovenlife


Any news from your attorney ?

Would be interesting to know what he made of this very interesting thread

Regards Sue


PS Still no news on my son yet !!

Advisory opinion has taken 4 months so far

Originally Posted by lovenlife

Hi

No nothing yet, he’s looking into it. He’s involved with a trail this week.

I have sent out about 50 emails to various Immigration law firms asking the question if K-2’s age out. You would really be surprised as to some of the responses I got, that being said some 10 ro so responded out of those, 3 have indicated that K-2’s do not age out, reaffirming what Folinskyinla has posted.

We heard back from the Ombudsman and they have indicated that a “specialist� from the USCIS is looking at our son’s case, and that the status is still pending. I have no idea what this “specialist� is or what their qualifications are in regard to this kind of matter.

Still nothing on your end either? Fingers crossed, lets hope you hear something soon, I’m sure it’s killing you as it is us in our situation.

Thanks for asking !!!

Originally Posted by Folinskyinla

Hi:

535 congressional inquires followed by FIFTY law firm inquires? Sigh -- you yourself noted earlier in this string about "stirring the hornets nest".

I just submitted a brief to the 9th Circuit Court of Appeals on statutory interpretation based upon the "clear language" analysis of two 1984 Supreme Court cases "Chevron" and "Phinpathya." On top of it, the Board of Immigration Appeals came out with a precedent decision against our position. [In that case, it helped the alien, but hurts MY client].

I've been asked for "cases" on this. As I noted, I've found no published cases. Your step-son just might become that case on this subject. Remember that published court cases involve REAL PEOPLE.

Originally Posted by lovenlife

Ok how about another angle:

"245(d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216. "

Ok does this mean that Sec 245 does not apply to any non-immigrant conditional resident, they are excluded as in “may not adjust� under Sec 245?

"The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) (relating to an alien fiancee or fiancé or the minor child of such alien) except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K)."

Same thing does this mean Sec 245 does not apply, that K1's and K2's are excluded from Sec 245, but 216 is in it’s place for a basis for adjusting?

If we are talking Sec 216 then I see no mention of child or minor children in Sec 216, 245(d) states as a result of a marriage of the nonimmigrant, or in the case of minor children of the k-1, to the citizen. This seems to indicate that the K1's and K2's up to 21 can file under Sec 216, and can not under Sec 245.

But then Sec 216 does not mention children, it mentions Sons or Daughters. Sec 216(g)(2) “by virtue of being the son or daughter of an individual through a qualifying marriage�.

Ok lets have a look at sec 101, they define darn near everybody in this section, but they do not mention what a son or daughter is specifically. I guess that is a given, the offspring of an individual. I would imagine the authors of Sec 216 would have mentioned “children� if that was their intent, but they didn’t. They could have said unmarried sons and daughters under 21, but they didn’t.

Seeing that the term just son or daughter is mentioned in Sec 216 it leads me to believe that the authors set out the conditions of the visa in Sec 214(d) They define who is a Fiancé or Fiancée and their minor Children Sec 101(a)(15)(k)(i) and (iii) and a child definition 101(b)(1)(A), (B), (C), (D), (E) that the marriage must take place with in 90 days after arrival, but they did not specify that to adjust you still had to meet the condition of a child. If it were true, they would have said in Sec 216 “child�, “minor children�, “unmarried persons under the age of 21 and unmarried�, etc. The rest of the INA is very specific in that regard, why get sloppy here in Sec 216 (g)(2) and unless it was the intent?

As stated in Sec 203(a) Allocation of Family Sponsored Immigrants, weather those of USC or LPR’s they make it quite clear as to “children� or “unmarried son’s and daughters� or “married sons and daughters� under Sec 203 (a)(1), (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), etc.

As stated in Sec 204 Procedures for Granting Immigrant visas, refers back to Sec’s 201 and 203 as to the persons of eligibility.


Ok ok, I'm grasping at straws here, it just thought I get this thread going again till we have any further news to post lol