K2 Age Out - Letter to my Congresswoman

[David and Carrie 0]

I sent the following letter today to Gwen Moore, Herb Kohl, and Russ Feingold:

Congresswoman Moore,

My name is XXXX. I have lived in South Milwaukee for nearly 10 years, and have supported your campaign. I have a family immigration issue I would like to describe to you.

After a more than two year courtship, most of which time I was in China with my fiancé, we successfully obtained the K1 and K2 visa's for her and her only son to come to the USA. They arrived here in October of 2008, and we were married on Thanksgiving Day in the presence of my family. They were happy to be here, and become part of an American family and join in the American life.

My stepson, Tianyu, enrolled very quickly in the UWM ESL program, and was awarded an "Outstanding Student" award. He has done volunteer work in the community, and been working as a cleaner at the Bradley Center and Miller park. He is well liked, and a good worker. He has scored very well on both the TOEFL and the ACT, and has been tentatively accepted to MSOE once he gets his green card.

We filed for the Adjustment of Status in December of 2008, requesting expedition due to age out potential. In spite of this, our interview was not until June 4th. We followed up with Info Pass appointments with the USCIS, and were told in the Milwaukee office, as well as from the 800 number help line, that we would be OK, since the I-485 was filed before Tianyu's 21st birthday. Even at the interview we were told that his age was: “Not a problem”. My wife received her approval and green card within days, but we heard nothing regarding Tim. After waiting the 60 days they insist on, we again scheduled an Info Pass appointment to find out what was going on. 10 days later, we received the denial letter, based on the fact that Tianyu was already 21 at the time of the decision, and no longer a "child".

This has been a huge blow to my family, an absolutely crushing disappointment to my stepson. He was very excited about attending MSOE this fall, and optimistic about his future. Tianyu is my wife’s only child. She has raised him herself for the past 16 years, and taught him how to be honest, and work hard. We have letters from his teachers at UWM, supervisor at Miller Park, and the River Revitalization Foundation. These are people that believe in him, and support his goal of living and working here, while continuing his education. Tianyu would be an ideal immigrant, smart, hard working, and obeys the law.

Prior to 1986, children of fiancé immigrants were granted status automatically following the marriage of their parent to a US citizen. The Immigration and Marriage Fraud Amendments inadvertently created this potential age out condition. It has been interpreted differently across the country and over time. We were hopeful, based on our conversations at the Milwaukee office that our application would go smoothly. Unfortunately, it did not, and we could use your help.

In the decision for “Verokvin v Still”, US District Judge Claudia Wilkin wrote on Dec 21, 2007: “Nothing in the legislative history of the IMFA suggests that Congress intended to eliminate the availability of permanent residence for K-2 visa holders between ages of eighteen and twenty-one. Indeed, such an interpretation would render the K-2 visa meaningless for these children.” She further adds: “Because USCIS applied the wrong statute in denying Plaintiff’s application, its decision was arbitrary and capricious, and is subject to remand in any event.”

In the Grushin case, Immigration Judge Michael H. Bennett wrote on Nov 5, 2008: “Respondent should not be denied the ability to adjust his status in accord with the benefit Congress conferred upon him through the K visa category simply because he happened to turn twenty-one years of age while his mother’s application to adjust her status was pending with USCIS. To find otherwise would render the K-2 visa issued to Respondent meaningless”.

In spite of these rulings, the USCIS seems intent on expanding on the less friendly interpretation of the K2 Visa Age Out Issue.

There is currently “Reuniting Families Act” legislation in process in both the House and Senate. I am sure you are familiar with this issue, and am most likely already a supporter. I ask that you give this issue your full attention.

In addition, my wife and stepson are both highly intelligent and interesting people, wanting to learn more about our government and its workings. It would be truly wonderful if we could meet with you, or a member of your staff to discuss our situation.

Thank you for your time and attention,

me

[scandal 951]

You have logic, reason, and common sense on your side.

You have basic fairness on your side - you complied with all requirements of the AOS process, were aware of the possible age-out situation and did your very best to head it off.

You have done your research, checked your facts, and offered substantial precedent.

Your letter is courteous, polite, yet direct and to the point.

If anyone ever deserves a hearing and an opportunity to get action as a constituent -- surely you do.

Your letter is a model example of how to press one's case.

Good luck!!! I sincerely hope Tianyu will be able to stay with you and your wife in the US.

[LaL 418]

You might want to consider messaging Randall Emery. He has several people involved in the group (AFU) that are in this situation. The issue is on the front page of the website.

Edited August 27, 2009 by LaL