Any K2 Age Out Updates?

[John R 0]

I have been following some of the K2 age out stories because my girlfriend, who I met 2 years ago, is in the same situation. She has a lawyer, but he just seems to be waiting for a deportation notice or something so he can take the case to court. It seems there haven't been any new postings on the issue in a while. I was just wondering if anyone knows of any actual cases good or bad, as I am interested in reading the arguments of both sides. I read jo&john's denial letter on their profile and if that is the exact wording of the law it is very vague and open to interpretation. It says you have to be eligible for a visa. Isn't just about anyone who hasn't committed a crime eligible? Being eligible does not mean you will get one. If they wanted to make it clear it should say "eligible, pursuant to xx". Then the letter states some eligibility requirements, but doesn't say they are in the same section. You can't pick something from one section and apply it to another without it being referenced, like the example I gave above, "eligible, pursuant to". They meet the other requirement because they had a visa when the application was submitted, so it seems to me if they are eligible for a visa they have met all the requirements. I'll have to take a look at the actual Act again to see the wording.

I find it interesting that my girlfriend’s denial letter was completely different. They quoted different sections and their "interpretation" of them seems suspect, to me anyway. I read it as saying the Attorney General can not adjust the immigrants status unless they were lawfully admitted to the US and they, or their parent, marries the citizen that filed the petition. They tried to tie that to the difinition of a child somehow. I have posted the letter below, with sensitive information removed, and would be interested in seeing the excuses they gave others. Most of the grammar, punctuation, and capitalization errors are in the actual document, not typos on my part, but I can’t guarantee I didn’t make any mistakes. I don’t care about grammar and such in informal settings like this forum, but I expect a little more from a legal document. I’m not being hypocritical :-D

Date: MAR 28 2006

Upon consideration, it is ordered that your application for status as a permanent resident be denied for the following reasons:

(See Attached)

If you fail to depart from the United States, proceedings will be instituted to enforce your departure. You may renew your application for status as a permanent resident during such proceedings.

District Director Phoenix, Arizona

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Attachment to I-291

On September 05, 2005, you filed Application for Permanent Residence, form I-485, pursuant to Section 245 of the Immigration and Nationality Act (Act). Section 245 of the Act States, in pertinent part:

(a) The status of an who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence…

Section 245 of the Act further states, in pertinent part:

(d) …the Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186 of this title 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 the alien’s nonimmigrant status under section 1101(a)(15)(K) of this title…

Section 101(B)(1) of the Immigration and Nationality Act states, in pertinent part:

…The term “child” means an unmarried person under twenty-one years of age…

A review of your record establishes that a Petition for Alien Fiance(e), Form I-129F, was filed on behalf of your mother, **** ****, by **** ****, a citizen of the United States. On July **, 2005, you were admitted into the United States as a K-2, child of a fiance, on the basis of that approved petition. On September 05, 2005, you filed your I-485 application based on your mother’s marriage to Mr. **** on July **, 2005. However, Service records reflect that on December **, 2005, you turned twenty-one years of age. Therefore, you are no longer considered to be a child and you are not entitled to the same status as your mother. Therefore, your application must be, and hereby is, denied.

There is no appeal to this decision. Pursuant to 8 CFR 274a.14(a)(1)(iii) any employment authorization previously granted to you on the basis of your pending application for permanent residence is automatically terminated as of the date of this notice. Any advance parole granted to you pursuant to Title 8, Code of Federal Regulations, Part 212.5 is hereby canceled as of the date of this notice.