k2 rights

Old Dec 21st 2001, 4:37 pm
  #1  
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I have a question;
Due to a family emergency I am travelling back to the UK tomorrow. I am schedules an AOS interview in March 2002 but I know that as I leave the US I will not get back in so I will have to get another visa, I am assuming the I130 ( I originally came in on k1 ) my problem is my son does not want to go back with me. He is settled in school etc and my husband is happy to let him stay here.
My son came in october on his k2, I came on a k1 last June. We have not gotten his AOS forms sent in yet ( we have till Jan 26 ) so he has no interview date.
What are his & my husbands rights in him being able to stay here?
Thanx for any advice.
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Old Dec 21st 2001, 6:43 pm
  #2  
Alvena Ferreira
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Andy Platt wrote:
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OK, please allow me to show my stupidity: on the I-485 form, it plainly states that
the K-2 can file to adjust status based on the K-1 parent's adjustment petition.
Therefore, if the K-1 parent leaves and abandons her petition, would it not follow
that the K-2 child had no basis for adjustment of status, since k-2's adjustment was
contingent on the K-1 parent's AOS? Just curious, maybe I'm missing something here?
I-485 form: http://www.ins.usdoj.gov/graphics/fo...iles/i-485.pdf "If you
were admitted as K-2, you may apply based on your parent's application." If the
parent has no application (ie, abandoned by her leaving the US), then how does the
K-2 adjust?

Alvena
-----------------------
Doc Steen Site: http://www.mindspring.com/~docsteen/...o/visainfo.htm
=========================================
I am not a lawyer and this is not immigration advice. This is my personal opinion,
posted for the purpose of discussion only. Locate an immigration attorney in your
area at: http://www.aila.org
=========================================
 
Old Dec 21st 2001, 7:01 pm
  #3  
Andy Platt
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    >
[usenetquote2]> > Anyway, a K-2 AOS can be granted independent of the K-1er so that should[/usenetquote2]
be
[usenetquote2]> > OK. The I-130 is the correct form for your husband to file. Once he has[/usenetquote2]
the
[usenetquote2]> > NOA from that he could file another I-129F for you and you could get a[/usenetquote2]
K-3
[usenetquote2]> > visa to return to the US which would be quicker than waiting for the[/usenetquote2]
I-130
[usenetquote2]> > to be approved.[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
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Maybe but I can't find the basis for that in law. The actual form itself makes no
reference to it - only saying that the copy of the I-129F approval and a copy of the
marriage certificate is needed. However, this situation is sufficiently out of the
ordinary that they should probably take legal advice.

Andy.

--
I'm not really here - it's just your warped imagination.
 
Old Dec 21st 2001, 11:50 pm
  #4  
Betastar
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On Fri, 21 Dec 2001 12:43:50 -0600, Alvena Ferreira <[email protected]> spake:

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I'm with you on this one, Alvena. This is also why people have had problems when the
K2 interview comes before the K1 interview for AOS, right?
 
Old Dec 22nd 2001, 12:22 pm
  #5  
Michael Voight
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Alvena Ferreira wrote:
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[usenetquote2]> > Anyway, a K-2 AOS can be granted independent of the K-1er so that should be OK.[/usenetquote2]
[usenetquote2]> > The I-130 is the correct form for your husband to file. Once he has the NOA from[/usenetquote2]
[usenetquote2]> > that he could file another I-129F for you and you could get a K-3 visa to return[/usenetquote2]
[usenetquote2]> > to the US which would be quicker than waiting for the I-130 to be approved.[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
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But... If she was married to a USC, the former K-2 is now a stepchild. A stepchild
(to certain ages) is treated as the child of the USC. So, he could still file the
I-130 for the stepchild.
 
Old Dec 22nd 2001, 1:47 pm
  #6  
Alvena Ferreira
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Michael Voight wrote:
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The problem is that the law states specifically that the K-2 can only adjust based on
the parent's k-1 visa adjustment. If the parent does not adjust, then the k-2 is SOL,
I think. They have made this very clear of late. This is compared to the K-1 visa,
from which one can only adjust based on the marriage to the original petitioner.

IF there is no valid K-1 to base the K-2 petition on, then the K-2 has no option for
adjustment. I may be wrong, but I think I'm right on this. This is one of the
problems with the K-1 and K-2 visas: you are limited to adjustment very specifically
with these two visa types. IF he did file the I-130 for the K-2, the K-2 would STILL
have to leave the US and then return when the I-130 was completed.

Consider this: When Arnaldo and I asked for expedited adjustment so that Paulo could
get adjusted before he turned 21, the officer at the interview tried to blow us off,
stating, "you can always file an I-130 for him." I questioned him whether Paulo would
have to leave the US if he did not get adjusted in time, and he said yes, he would.
That is, Paulo had NO option for adjustment EXCEPT the K-2 and to be completed by age
21, and otherwise he would have to leave the US. K-1 and K-2 visa holders cannot
otherwise change status after they enter the US, as I understand it, they must adjust
as K-1 and K-2 from marriage within 90 days and the K-2 must adjust based on the K-1
adjustment. If you do not have a K-1 adjustment, then you cannot have a K-2
adjustment based on
it. I stand by my original posting on this, therefore.

Alvena
-----------------------
Doc Steen Site: http://www.mindspring.com/~docsteen/...o/visainfo.htm
=========================================
I am not a lawyer and this is not immigration advice. This is my personal opinion,
posted for the purpose of discussion only. Locate an immigration attorney in your
area at: http://www.aila.org
=========================================
 
Old Dec 22nd 2001, 2:10 pm
  #7  
Alvena Ferreira
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As an addendum to my previous post, if you read the Life Act text:
http://www.shusterman.com/245i-txt.html Read:
(b) PROVISIONS AFFECTING NONIMMIGRANT STATUS and read the last item in that
section (3).

It plainly states :
==
`(3) In the case of a nonimmigrant described in section
101(a)(15)(K)(ii), and any child of such a nonimmigrant who was admitted as
accompanying, or following to join, such a nonimmigrant, the period
of authorized admission shall terminate 30 days after the date on
which any of the following is denied: `(A) The petition filed under
section 204 to accord the principal alien status under section
201(b)(2)(A)(i). `(B) The principal alien's application for an
immigrant visa pursuant to the approval of such petition. `(C) The
principal alien's application for adjustment of status under section
245 pursuant to the approval of such petition.'.
==
Ergo, if the fiance or spouse's petition for adjustment is denied (or abandoned in
the case of the original poster), then the child has 30 days in which to leave the
US. I see no other options available.

Alvena
-----------------------
Doc Steen Site: http://www.mindspring.com/~docsteen/...o/visainfo.htm
=========================================
I am not a lawyer and this is not immigration advice. This is my personal opinion,
posted for the purpose of discussion only. Locate an immigration attorney in your
area at: http://www.aila.org
=========================================
 

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