Gary Morrison

Folinskyinla wrote:

    > There was a case in Colorado where they denied the K-2 adjustment of a
    > girl over 18 and not yet quite 21. They placed her in removal
    > proceedings! A district court suit was filed to see if things could be
    > done before kid turned 21 -- DHS folded on that one and kid was adjusted
    > short of her 21st birthday.

Do you know much about what case they made in their suit? For example,
did they sue on the grounds of some really specific detail of their
particular circumstances, as opposed to with regard to some aspect of
the fairness of the law?

I'm asking in hopes that I could give my lawyer some ideas when I talk
to him sometime in the next few days.

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Folinskyinla

Hi:

I am familiar with the suit -- I was involved in the inter-AILA discussions of this. I also had a brief hallway discussion with one the CIS HQ Counsel while at the AILA conference in San Antonio this year.

In that case, CIS [and ICE in the removal proceedings] did take the position of fairness regarding the fact that the marriage had to take place before the kid turned 18. It does seem to be the CIS position that allowing a girl like your fiance's daughter would involve an unfair interpretation of the law.

However, issues of fairness aside, in immigration law it is often the letter of the law that applies. [I've noted over the years that government only remembers "fairness" when it comes to benefits -- "it wouldn't be fair to others to give YOU the benefit" but turn a blind ear to "it ain't fair to screw you" -- but I digress]

Look -- as of now, Consuls issue the visas, and CBP admit the K-2 for 90 days. If the K-2 is within 6 months of turning 21, the visa will be good only until the day before her birthday. The problem is on the adjustment end of things.

Folinskyinla

Hi:

I have no idea how common it is, to be honest. These cases get to me or other lawyers AFTER certain brown material "hits the fan" [To non-Americans on this NG, this is slang for "after bad trouble has developed."] This can provide a warped view of things.

What sometimes happens is that people "re-invent the wheel" from time to time [sorry for more slang]. For example, the "K" visas came into existence in 1970. Within the first decade, the contours of the "K" had been fleshed out by litigation. In 1986, there were the 1986 "Immigration Marriage Fraud Amendments" which added the 2 year condition and the 2 year meeting requirement" and a few stylistic changes. Then nearly 2 decades later, CIS gets certain ideas and decides that the pre-1986 law ain't no good. So the 1970's are being litigated again.

On the student visa, I'm not going to give any advice other than it does NOT strike me as a good idea. Do note that although I am a lawyer, I am not YOUR lawyer -- I am not giving advice on this.

Gary Morrison

Thanks for the thoughts. Unpleasant as they are...

Folinskyinla wrote:

    >>Folinskyinla wrote:
    >>>There was a case in Colorado where they denied the K-2 adjustment of
    >>>a
    >>>girl over 18 and not yet quite 21. They placed her in removal
    >>>proceedings! A district court suit was filed to see if things could
    >>>be
    >>>done before kid turned 21 -- DHS folded on that one and kid was
    >>>adjusted
    >>>short of her 21st birthday.
    >>Do you know much about what case they made in their suit? For
    >>example,
    >>did they sue on the grounds of some really specific detail of their
    >>particular circumstances, as opposed to with regard to some aspect of
    >>the fairness of the law?
    >>I'm asking in hopes that I could give my lawyer some ideas when I talk
    >>to him sometime in the next few days.
    >>--
    >>(Preferably reply to the newsgroup, please. If you reply by Email, I
    >>will sincerely try to receive your message, but it will probably get
    >>buried in spam.)
    >
    >
    > Hi:
    >
    > I am familiar with the suit -- I was involved in the inter-AILA
    > discussions of this. I also had a brief hallway discussion with one the
    > CIS HQ Counsel while at the AILA conference in San Antonio this year.
    >
    > In that case, CIS [and ICE in the removal proceedings] did take the
    > position of fairness regarding the fact that the marriage had to take
    > place before the kid turned 18. It does seem to be the CIS position
    > that allowing a girl like your fiance's daughter would involve an unfair
    > interpretation of the law.
    >
    > However, issues of fairness aside, in immigration law it is often the
    > letter of the law that applies. [I've noted over the years that
    > government only remembers "fairness" when it comes to benefits -- "it
    > wouldn't be fair to others to give YOU the benefit" but turn a blind ear
    > to "it ain't fair to screw you" -- but I digress]
    >
    > Look -- as of now, Consuls issue the visas, and CBP admit the K-2 for 90
    > days. If the K-2 is within 6 months of turning 21, the visa will be
    > good only until the day before her birthday. The problem is on the
    > adjustment end of things.
    >


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Gary Morrison

Folinskyinla wrote:

    > On the student visa, I'm not going to give any advice other than it does
    > NOT strike me as a good idea. Do note that although I am a lawyer, I am
    > not YOUR lawyer -- I am not giving advice on this.

I certainly do understand that you're not my lawyer, but I appreciate
hearing your thoughts on this.

Why do you think the student-visa recourse would not be a good idea?

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ian-mstm

I'm guessing it has something to do with entering the US with a non-immigrant visa when, in fact, she has immigrant intent... and preconceived intent at that!

Ian

Gary Morrison

ian-mstm wrote:

    > I'm guessing it has something to do with entering the US with a non-
    > immigrant visa when, in fact, she has immigrant intent... and
    > preconceived intent at that!

Gotcha. In short, they'd probably see right through that one!

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Folinskyinla

Hi:

Lawyers I know in Austin who enjoy good reputations -- alphabetical

Nina Fantl
Barbara Hines
Dan Kowalski
Paul Parsons

I'm not saying this list is complete -- its just people I know in Austin who I know and is not meant to be any insult to the plethora of other lawyers there.

Good luck.

Gary Morrison

Ah good. The one I have in mind is on your list. I'll keep the others
in mind too.

Folinskyinla wrote:

    > Hi:
    >
    > Lawyers I know in Austin who enjoy good reputations -- alphabetical
    >
    > Nina Fantl
    > Barbara Hines
    > Dan Kowalski
    > Paul Parsons
    >
    > I'm not saying this list is complete -- its just people I know in Austin
    > who I know and is not meant to be any insult to the plethora of other
    > lawyers there.
    >
    > Good luck.
    >


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scrubbedexpat099

Student Visa requires non immigrant intent.

lovenlife

I know of a K-1/K-2 that dealt with the Huston office in TX. The K-1 entered first and the K-2 followed to join afterward. The K-2 received his visa a couple of days before he turned 21, entered when he was 20 and actually FILED his I-485 after he turned 21, he is now in the US as a Legal Permanent Resident with a green card. Fluke? Maybe, or maybe Huston still follows what is written the INA. <shrug>

I also know of the case in Colorado ask your prospective attorney to checkout the case via PACER in the Colorado District, case #1:06-cv-00620-MSK. In this case initially the USCIS denied the K-2 on the basis that there was no Step-Parent relationship between the K-2 and the original USC Petitioner, there does not need to be. The INA (Immigration and Nationality Act) under Section 101(a)(15)(k) the K-1/K-2 is defined in part:

(K)subject to subsections (d) and (p) of section 214, an alien who--

(i)(K-1)is the fiancée or fiancé of a citizen of the United States and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;

(ii) (Used for K-3)

(iii) (K-2 K-4) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;

The phrase “is the minor child of an alien described in clause (i)” should be interpreted to mean that a “child” (under the INA is an unmarried person under 21 See Section 101(b)(1)) derives “benefit” or eligibility from the Alien Parent, and not from the USC petitioner. With a Spousal visa or Petition for Immediate Relative (I-130) the USC petitioner would have to have a legitimate tie to the Alien, a wife/husband, natural child, or stepchild. Under the INA to be considered a stepchild the alien would have to be under 18 at the time of the qualifying marriage.

So what the USCIS did in Colorado was deny the K-2 under the incorrect section of the INA, Section 203, the section that deals with Immediate Relatives Immigrants, and not Non-Immigrant K’s, Section 214. After the ICE lawyers got a hold of this case in District Court, they decided to change up on the original argument, that the term “minor child” implied someone other then a person unmarried and under 21 under the INA, that the term “minor” must mean a person under 18. Unfortunately for ICE there is no definition under the INA what a “minor” is. It seems to just be surplus language like the “blue sky” as opposed to the “sky”. All throughout Section 101 (the definitions section of the INA) the term “minor child” used in several other Immigrant/Non-Immigrant classes of aliens to describe a child and none of these have been meant to imply anything other then a person unmarried and under 21. The case was eventually dismissed and the K-2 was granted Legal Permanent Residence.

There was another couple in Alabama (I think) that their K-2 son was 19 or 20 when the qualifying marriage took place between the USC Petitioner and the K-1. At their Adjustment of Status interview this same situation came up, the K-2 could not be considered a Step-child to the USC petitioner. The Adjudication Officer wouldn’t approve the K-2 until he got clarification from his supervisor. My wife and I forwarded them the documents of public record of the Colorado case above, they took them back down to the Adjudication Officer (AO), and the AO approved them after looking over the case. Not saying this is a slam dunk by any means, but it appeared to help in their case.

My advice is consult with an Attorney that specializes in Family Based Immigration, one that understands the K Non-Immigrant process.

Stuart is correct that there is a lot of poo flinging about these days on K-2’s and adjustment if the “child” was over 18 at the time of marriage of the K-1 and the USC petitioner, or if K-2’s age out in the traditional sense as other Immigrant petitions do. With the enactment of the CSPA (Child Status Protection Act, and not to be confused with the Chinese Student Protection Act) in August of 2002 the USCIS field memos (Specifically Johnny Williams memo of Feb 2003) has high jacked long standing practices within the USCIS on how they handle these cases. I know all to well, I’m Girona40’s husband, and not a day goes by that this is not going through our heads, we have been dealing with this for 4 years now.

Good Luck, and hope your Immigration process goes smoothly, best to be prepared and well informed.