K-2 AOS for Step-daughter

[Dave-n-Oksana 49]

You have another option.

http://travel.state.gov/visa/immigrants/ty...types_2993.html

Children Have Derivative Status

Children do not need separate Petition for Alien Relative, I-130 petitions, but you, the petitioner, must take care to name all your children on the Petition for Alien Fiance, I-129F petition. If you do not name the children on the petition, they may find it difficult to prove their identity as children of a K-3 applicant or person in K-3 status.

You must file separate I-130 immigrant visa petitions for your children before they qualify for permanent residence. When they adjust status in the United States, they must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS Office that serves the area where you live. Remember that in immigration law children must be unmarried and under 21 years of age. See child.

Rebeccajo, we are applying under a K-1/2 not the K-3/4, and I do have her listed on the I-129f. I guess what is also adding the confusion is this link where it says that a K-2 are not required to prove a step-parent/step-child relationship.

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

If I have to file the I-130 I will have no problem with that though that is an expense I was not counting on. Can we file the I-130 for her before we start the AOS for my Fiancee?

[JERIII 8]

No, absolutely not. As long as she is under age 21 and not married and comes with your fiancee, or follows within a year, it does not matter when you are married. Children of K-1 visa holders are eligible for a K-2 until age 21.

Incorrect.

http://travel.state.gov/visa/immigrants/ty...types_2994.html

Children Have Derivative Status

The child of a fiancé(e) may receive a derivative K-2 visa from his/her parent’s fiancé(e) petition. You, the American citizen petitioner, must make sure that you name the child in the I-129F petition. After the marriage of the child’s parent and the American citizen, the child will need a separate form I-485 Application to Register Permanent Residence or to Adjust Status. The child may travel with (accompany) the K-1 parent/fiancé(e) or travel later (follow-to-join) within one year from the date of issuance of the K-1 visa to his/her parent. A separate petition is not required if the children accompany or follow the alien fiancé(e) within one year from the date of issuance of the K-1 visa. If it is longer than one year from the date of visa issuance, a separate immigrant visa petition is required.

Remember that in immigration law a child must be unmarried. The stepparent/stepchild relationship must be created before the child reaches the age of 18.

And the confusion sets in again.

Are you saying that my step daughter will not be able to adjust status on the K-2 when my fiancee does her AOS? If so what are our options for her? This is a big concern as we both want our family to be complete and in the same location.

Dave

Unless someone here is sure they know what they are talking about, (I do not) I suggest you contact a lawyer.

The snippet of website quoted above is directly contradicted by the USCIS position here:

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

Within this memo (dated 2007) it states, in part:

The Immigration and Marriage Fraud Amendments of 1986 created a gap regarding the procedure for a K-2 alien to adjust status to that of a person admitted for permanent residence.1 The agency has filled the gap with the controlling regulation at 8 CFR 214.2(k)(6)(ii), which reads:

Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

Section 216 of the INA imposes conditions on the nature of the legal permanent resident status already granted for certain alien spouses, sons and daughters. Section 216(a)(1) reads in part “an alien son or daughter … shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.”

Officers should NOT limit the adjustment of status of K-2 aliens to persons under the age of 18 based on the term “minor child” as it appears in 245(d). The INA does not define the term “minor child.” Section 101(B)(1) defines the term “child” as “an unmarried person under twenty-one years of age.” Consequently, officers should allow for the adjustment of status of K-2 aliens under the age of 21, provided the requirements for adjustment of status in 245 of the INA are satisfied

Good luck.

[payxibka 10,044]

Rebeccajo, we are applying under a K-1/2 not the K-3/4, and I do have her listed on the I-129f. I guess what is also adding the confusion is this link where it says that a K-2 are not required to prove a step-parent/step-child relationship.

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

If I have to file the I-130 I will have no problem with that though that is an expense I was not counting on. Can we file the I-130 for her before we start the AOS for my Fiancee?

The step child relationship needed to be created BEFORE the age of 18 or you are not able to petition via an I-130... the petition will need come from the non-USC

Edited April 26, 2009 by payxibka

[Dave-n-Oksana 49]

Rebeccajo, we are applying under a K-1/2 not the K-3/4, and I do have her listed on the I-129f. I guess what is also adding the confusion is this link where it says that a K-2 are not required to prove a step-parent/step-child relationship.

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

If I have to file the I-130 I will have no problem with that though that is an expense I was not counting on. Can we file the I-130 for her before we start the AOS for my Fiancee?

The step child relationship needed to be created BEFORE the age of 18 or you are not able to petition via an I-130... the petition will need come from the non-USC

So we will have to wait until my fiancee receives her GC before we can AOS for her daughter? What will be her daughter's status be? Will she have to return to the Ukraine or can she stay here and wait for the process to start?

I know a lot of questions, but it has been hard to find definitive answers and the US immigration documents might as well be written in Martian.

[payxibka 10,044]

Rebeccajo, we are applying under a K-1/2 not the K-3/4, and I do have her listed on the I-129f. I guess what is also adding the confusion is this link where it says that a K-2 are not required to prove a step-parent/step-child relationship.

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

If I have to file the I-130 I will have no problem with that though that is an expense I was not counting on. Can we file the I-130 for her before we start the AOS for my Fiancee?

The step child relationship needed to be created BEFORE the age of 18 or you are not able to petition via an I-130... the petition will need come from the non-USC

So we will have to wait until my fiancee receives her GC before we can AOS for her daughter? What will be her daughter's status be? Will she have to return to the Ukraine or can she stay here and wait for the process to start?

I know a lot of questions, but it has been hard to find definitive answers and the US immigration documents might as well be written in Martian.

I am not certain but I believe that the K-2 has until age 21 to AOS... I know a K-4 gets shutout at age 18, but that is because of the underlying I-130...

Several other issues... I do not believe that the I-130 approval from a LPR petitioner results in an immediate available visa number... therefore it could be a long time before one becomes available. I doubt she could stay that long and no would have ability to get SSN, DL, travel or anything else that life requires here in the USA.

[rebeccajo 14]

OK.......

I now have to step back from this discussion and say I'm thoroughly confused.

I may have gotten my K4 and K2 mixed.

Both K4 and K2 can adjust up until age 21. In one case, the stepparent/child relationship has to have been established prior to age 18. In the other it does not.

I've read until I'm purple and have hit the wall.

I apologize if I have unduly caused the OP any stress. Don't take my word for this one. I'm lost.

[Gary and Alla 3,694]

When you file, the AOS for both can be sent in the same envelope and I attached ONE check for all the fees. As she is over age 14, the AOS fee will be the same as for your fiancee, $1010.00

I agree with the firts part, but not the second. You should send both AOS applications TOGETHER in one envelope. But you should attached SEPARATE check for $1,010 each. Some people have gotten lucky with one check, but many people have gotten their packages returned due to incorrect payment enclosed when sent in one check. They had to resend them with separate checks.

I don't suppose it hurts to send two checks, I am one of those tha "got lucky", I enclosed one check for two people.

[Gary and Alla 3,694]

Rebeccajo, we are applying under a K-1/2 not the K-3/4, and I do have her listed on the I-129f. I guess what is also adding the confusion is this link where it says that a K-2 are not required to prove a step-parent/step-child relationship.

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

If I have to file the I-130 I will have no problem with that though that is an expense I was not counting on. Can we file the I-130 for her before we start the AOS for my Fiancee?

The step child relationship needed to be created BEFORE the age of 18 or you are not able to petition via an I-130... the petition will need come from the non-USC

So we will have to wait until my fiancee receives her GC before we can AOS for her daughter? What will be her daughter's status be? Will she have to return to the Ukraine or can she stay here and wait for the process to start?

I know a lot of questions, but it has been hard to find definitive answers and the US immigration documents might as well be written in Martian.

No. You send the AOS for both at the same time, in the same envelope, as I did, and both will get their green cards about the same time (or should). We received separate biometrics and interview appointments, one day apart, for some reason (USCIS being themselves I suppose) but we took our son to both Alla's biometrics and her AOS interview and all was done at one time (we had to convince the supervisor it was a good idea to do both at once) and they received their AP, EAD and Green Cards all around the same time, but not exactly the same time. They all came within a week. Your daughter will only have to wait to receive her SSN number until her AOS is complete....she does not have to wait for the AOS and

I will repeat again, the age out for a K-2 is 21 years old. You have NO concerns regarding her age provided you get the visa and file the AOS before she age 21, sounds like you have that covered.

[Gary and Alla 3,694]

No, absolutely not. As long as she is under age 21 and not married and comes with your fiancee, or follows within a year, it does not matter when you are married. Children of K-1 visa holders are eligible for a K-2 until age 21.

Incorrect.

http://travel.state.gov/visa/immigrants/ty...types_2994.html

Children Have Derivative Status

The child of a fiancé(e) may receive a derivative K-2 visa from his/her parent’s fiancé(e) petition. You, the American citizen petitioner, must make sure that you name the child in the I-129F petition. After the marriage of the child’s parent and the American citizen, the child will need a separate form I-485 Application to Register Permanent Residence or to Adjust Status. The child may travel with (accompany) the K-1 parent/fiancé(e) or travel later (follow-to-join) within one year from the date of issuance of the K-1 visa to his/her parent. A separate petition is not required if the children accompany or follow the alien fiancé(e) within one year from the date of issuance of the K-1 visa. If it is longer than one year from the date of visa issuance, a separate immigrant visa petition is required.

Remember that in immigration law a child must be unmarried. The stepparent/stepchild relationship must be created before the child reaches the age of 18.

And the confusion sets in again.

Are you saying that my step daughter will not be able to adjust status on the K-2 when my fiancee does her AOS? If so what are our options for her? This is a big concern as we both want our family to be complete and in the same location.

Dave

Unless someone here is sure they know what they are talking about, (I do not) I suggest you contact a lawyer.

The snippet of website quoted above is directly contradicted by the USCIS position here:

http://www.uscis.gov/files/pressrelease/K2...tatus031507.pdf

Within this memo (dated 2007) it states, in part:

The Immigration and Marriage Fraud Amendments of 1986 created a gap regarding the procedure for a K-2 alien to adjust status to that of a person admitted for permanent residence.1 The agency has filled the gap with the controlling regulation at 8 CFR 214.2(k)(6)(ii), which reads:

Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

Section 216 of the INA imposes conditions on the nature of the legal permanent resident status already granted for certain alien spouses, sons and daughters. Section 216(a)(1) reads in part “an alien son or daughter … shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.”

Officers should NOT limit the adjustment of status of K-2 aliens to persons under the age of 18 based on the term “minor child” as it appears in 245(d). The INA does not define the term “minor child.” Section 101(B)(1) defines the term “child” as “an unmarried person under twenty-one years of age.” Consequently, officers should allow for the adjustment of status of K-2 aliens under the age of 21, provided the requirements for adjustment of status in 245 of the INA are satisfied

Good luck.

I am sure. I have done two K-2's, one over age 18 and also one "to follow" You do not need the I-130 for a K-2 (or K-1) visa. There is no requirement the parent/step-child relationship be established before age 18 for the K-2. As this clearly states. The OP is fine, and will have no problems. I am failiar with the Kiev consulate he is going through. The K-2 interview, if you call it that, is basically nothing but a fingerprint and turning in documents.

[Bobby+Umit 161]

http://travel.state.gov/visa/immigrants/ty...types_2994.html

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I am sure. I have done two K-2's, one over age 18 and also one "to follow" You do not need the I-130 for a K-2 (or K-1) visa. There is no requirement the parent/step-child relationship be established before age 18 for the K-2. As this clearly states. The OP is fine, and will have no problems. I am failiar with the Kiev consulate he is going through. The K-2 interview, if you call it that, is basically nothing but a fingerprint and turning in documents.

I agree. The only problem would of been if you tried to bring her over without the K-2 (for example, using a visitor visa/vwp).

Only a USC can petition (aos) for an immediate relative. For a step-child the relationship has to be established with the USC before the 18th birthday of the child (marriage to the childs parent fufills this requirement), and the child has to be unmarried. Even then, the AOS has to occur before the "age-out", as that will cause delays.

But since the OP has a K-2 - she is good to go.

Good luck !

[Dave-n-Oksana 49]

http://travel.state.gov/visa/immigrants/ty...types_2994.html

<snip>

<snip>

I am sure. I have done two K-2's, one over age 18 and also one "to follow" You do not need the I-130 for a K-2 (or K-1) visa. There is no requirement the parent/step-child relationship be established before age 18 for the K-2. As this clearly states. The OP is fine, and will have no problems. I am failiar with the Kiev consulate he is going through. The K-2 interview, if you call it that, is basically nothing but a fingerprint and turning in documents.

I agree. The only problem would of been if you tried to bring her over without the K-2 (for example, using a visitor visa/vwp).

Only a USC can petition (aos) for an immediate relative. For a step-child the relationship has to be established with the USC before the 18th birthday of the child (marriage to the childs parent fufills this requirement), and the child has to be unmarried. Even then, the AOS has to occur before the "age-out", as that will cause delays.

But since the OP has a K-2 - she is good to go.

Good luck !

Thanks again for all the replies. I am starting to breathe easier now and I am sure that my fiancee will also when I tell her. Oh the fun and joys of dealing with the US Government.