lovenlife

The USCIS came back with this response from an inquiry we made sometime ago:


"In order to qualify as a child of a K-1 finacee the individual must meet one of the statutory definitions of the term child as found in section 101(b)(1) of the INA. In order to meet any of those definitions, the applicant must be unmarried and under 21 Mr. ##### does not meet either of those requirements. In addition Section 245(d) of the INA states an individual entering the US under Section 101(a)(15)(k) of the INA cannot adjust other than through the K, which requires that the individual meet the definition of a child

We regret the response could not be more favorable blah blah blah”

Hmm he's not nor has he ever been married, and he was 20 when we filed his AOS, but he was over 21 at the interview.

So anyone have an idea what they are saying or getting at? We believe in folinskyinla’s assertions in the other thread, but we are trying to figure where they are going with this so we may get someone to counter this argument if at all possible.

Thanks

Folinskyinla

Hi Curtis:

They are wrong and I am right. But I don't have the power to grant a green card.

I've been meaning to write the Ombudsman on the subject -- just been quite busy of late.

Bruce and I did have a good debate on the subject.

lovenlife

Thanks folinskyinla, I just wish we could find someone to present your argument to the USCIS, it sure hasn’t been for the lack of trying! From the movie “The Outlaw Josie Wales” Lone Watie said “We’ll endeavor to perceiver” but maybe the character Fletcher, played by John Vernon said it best in the movie with regard to our case and their interpretation “There's another saying, Senator. Don't piss down my back and tell me it's raining”

lol

lovenlife

Our Senator's immigration person just talked with someone in the VSC. This person, an adjudicator according to our senator’s aide, indicated that if we have proof showing we filed prior to our son's 21st B-Day, he should be able to adjust. She asked that we provide her a copy of the "cash" receipt (we never received an NOA) we received from the USCIS the day we filled the I-485 for our son. The receipt clearly shows the date, our son's name and the forms that were submitted, the I-485 being one of them.

Has anyone heard of this situation? There isn't anything in the INA that says the acceptance of the forms and fees entitles anything that I know of......... is there?

Folinskyinla

Hey Curtis:

It was educational for me in engaging in the discussions with Bruce and Andres. Personally, I beleive that only the K-2 entry had to take place before the 21st birthday -- but I also think a "colorable" argument can be made pursuant to the INA and the regulations that the I-485 has to be filed before the 21st birthday. Since you wife's son did file way before he turned 21, the precise dividing line is not an issue here.

Furthermore, the fact that he filed 8 months before he turned 21 and the long-established "age-out" procedures that have been in place [but have grown rusty with CSPA], CIS was also looking at "equitable" argument. The old adage of "bad facts make bad law" is a two-edged sword at times. Your facts are pretty "bad" from the CIS point of view [e.g. "good" from your POV] and CIS really doesn't want to go their except on their terms.]

Now that I know who your attorneys are BTW, the named partner enjoys an excellent national reputation.

lovenlife

After your conversations with Andres did he seem to understand your argument and agree? I haven't had a reply back from for some days now, the poor fellow is normally all over the country. I think the reason we are 'there' is because of them, now it's how do we present it to them in a way to allow them to go 'there" on our terms?

spmalone

I find that I am in close to the same position. My daughter was eighteen when I married her mother. They have just denied her AOS because we married after she was eighteen. They want to deport her. It makes no sense to me. We know several people, some of them family, who had older childern and everything went will. I am very afraid.

Shawn

HunterGreen

Shawn,

I'm sorry to hear that. But I do think your situation is a lot different from the OP's one. In order to be able to petition for your stepdaughter, the 'step-relationship' has to be established before the child's 18 birthday... which it wasn't.
I can understand you're scared though and I hope someone will stop by and offer you some advice... although maybe you should try starting a thread of your own about this in order to generate more answers, since they really are two completely different situations.

Much luck,
Elaine

CaliforniaBride

I've read the OP and I'm not seeing the difference. I read it as a K1's child has to be under 21 and unmarried to qualify as a K2.

If Shawn is the USC then his spouse would have been the K1 and so his step daughter would be the K2. I would imagine that the K2 (and K4) visas ONLY apply to step-children as birth or adoptive children of USC's are USC's already.

lovenlife

From what Shawn has told me his daughter is a K-2 derivative beneficiary and the CIS case worker somehow seems believe that there has to be a step relationship to that of the USC. Which we all know is not the case with a K-2. Shawn is seeing a lawyer today. Lets wish them luck, one good thing is the mother has received her CPR card, and the daughter is still under 21, and has already had her interview, the reasons given for not granting the K-2 CPR at that time was because there was a cock-up on the mothers paper work, so the K-2 would have to wait till the K-1 was corrected. Hopefully this will be cleared up after a short meeting with the applicants, lawyer and the CIS adjudications officer.

Rete

The critical issue is the age of the child at the time of the marriage. The marriage must have taken place before the child's 18th birthday.

Rete

The child might have been a K-2 because the K visa (Fiancee Visa) was issued prior to the child's 21st birthday which would allow them to adjust status. However, because the parent's marriage did not take place until the child had turned 18, the ability to adjust status is removed.

In a case such as this, if the child was close to the age of 18 at the time the US Consulate approved the K visa, the parents should have made sure they married prior to the child's 18th birthday. Or the US Consulate should not have approved the K-2 visa if the child were 18 already.

Rete

Probably because the marriage took place before the 18th birthday and/or they filed for adjustment under a different category which required an I-130 as well as the I-485.

lovenlife

This is wrong.

According to sec 245(d) they are able to adjust provided that the marraige took place and the K-2 was still a minor at the time of marriage i.e. under 21, there need to be no step parent relationship to the USC. The K-2 in this case derives status from the k-1 parent.

Section 101(a)(15)(K)

(K) 3bb/ subject to subsections (d) and (p) of section 214, an alien who--

(i) is the fiancee or fiance 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) Skipped this cus it don't apply

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

*Note a minor child is defined as an unmarried person under 21 Sec 101(b)(1)


Section 214(d) Admission of Non Immigrants

(d) A visa shall not be issued under the provisions of section 101(a)(15)(K)(i) 1bbb/ until the consular officer has received a petition filed in the United States by the fiancée or fiancé of the applying alien and approved by the Attorney General. The petition shall be in such form and contain such information as the Attorney General shall, by regulation, prescribe. It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival, except that the Attorney General in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the United States and upon failure to do so shall be removed in accordance with sections 240 and 241.

if they meet the conditions to be granted K-1 | K-2 status they get admitted to the US and the K-1 has to marry the USC petitioner within 90 days or the K-1 | K-2 have to leave the US.

Section 245(d) Adjustment of Status

(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. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) 2aa/ 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).

This bit here as a result of a marraiage of the K-1 (or in the case of the K-2, if the parent marrys) to the USC petitioner they can adjust persuant to section 216.

Rete

I do not see that written anywhere in your cut and paste job.