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K-2 Age Out

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Filed: Citizen (apr) Country: Mexico
Timeline

I am just getting ready to start the K-1 process, and am confused about whether or not to include my fiance's 20 year old daughter. She will turn 21 this summer, well before we get thru the entire process, but if I do include her now will she be able to get the K-2 visa or will she age out--I have read conflicting things and any clarity would be really appreciated.

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Filed: K-1 Visa Country: Vietnam
Timeline

I am just getting ready to start the K-1 process, and am confused about whether or not to include my fiance's 20 year old daughter. She will turn 21 this summer, well before we get thru the entire process, but if I do include her now will she be able to get the K-2 visa or will she age out--I have read conflicting things and any clarity would be really appreciated.

Yes, she will most likely age out. She must be under 21 and unmarried to be eligible for a derivative K2. This means she must be under 21 when the visa is issued. To further complicate matters, she must be under 21 when her AOS is approved after she arrives in the US. Except in very unusual circumstances, the Child Status Protection Act (CSPA) would not protect her from aging out if she turned 21 while her AOS is pending. I don't know when her birthday is, but if you haven't even submitted the petition yet then it would take a minor miracle to get her a visa, get her to the US, and get her a green card before she's 21.

Just to clear things up, you include ALL children of hers on the I-129F, whether or not they are eligible for K2 visas.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

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Filed: Citizen (apr) Country: Mexico
Timeline

That's where I am confused. There was a Northern District of California ruling that ties the age to the time the I-129F is filed, but what I am unclear of is does that apply to everyone or just folks who live within that District?

http://immdaily.com/pdfs/Verovkin%2012-21-07.pdf

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That's where I am confused. There was a Northern District of California ruling that ties the age to the time the I-129F is filed, but what I am unclear of is does that apply to everyone or just folks who live within that District?

http://immdaily.com/pdfs/Verovkin%2012-21-07.pdf

This isn't entirely accurate. It states that the K-2 beneficiary must be under 21 and unmarried at the time the K-2 visa is issued, not the intial petition filed. The petition itself has nothing to do with the derivative K-2, but rather assesses the petitioner and their fiance/ee's eligibility to apply for a K-1 (namely, they have met in person within the past 2 years and are both free to marry at the time the petition is filed.)

Agreed, the case you have cited does indicate that since the consulate has to adjudicate the K-1/2 application as though it is a an immigrant visa, and argues that the adjustment filing serves only to prove that the qualifying condition to conditional permanent residence has been met (namely, the petitioner and the principal beneficiary have got married).

But, it looks like not only was the derivative K-2 in this case under 21 when he was issued the K-2, but was also under 21 when the marriage took place AND was under 21 when the AOS was filed.

In your situation, you are going to be very hard pushed to get to consulate interview before your fiancee's daughter reaches 21.


Timeline Summary:

K-1/K-2 NOA1 - POE: 9 February - 9 July 2010

Married: 17 July 2010

AOS mailed - Interview : 22 November 2010 - 10 March 2011

ROC mailed - approved: 14 February - 18 June 2013

Citizenship mailed - ceremony: 9 February - 7 June 2017

 

VJ K-2 AOS Guide

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Filed: Other Country: China
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This isn't entirely accurate. It states that the K-2 beneficiary must be under 21 and unmarried at the time the K-2 visa is issued, not the intial petition filed. The petition itself has nothing to do with the derivative K-2, but rather assesses the petitioner and their fiance/ee's eligibility to apply for a K-1 (namely, they have met in person within the past 2 years and are both free to marry at the time the petition is filed.)

Agreed, the case you have cited does indicate that since the consulate has to adjudicate the K-1/2 application as though it is a an immigrant visa, and argues that the adjustment filing serves only to prove that the qualifying condition to conditional permanent residence has been met (namely, the petitioner and the principal beneficiary have got married).

But, it looks like not only was the derivative K-2 in this case under 21 when he was issued the K-2, but was also under 21 when the marriage took place AND was under 21 when the AOS was filed.

In your situation, you are going to be very hard pushed to get to consulate interview before your fiancee's daughter reaches 21.

Which for all intents and purposes means the daughter will only manage to immigrate if her LPR parent files a petition and she remains unmarried for several more years. They won't be arriving together.

One other option for the daughter is a student visa. Perhaps she'll meet and marry the love of her life in the USA while a student.


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Filed: K-1 Visa Country: Vietnam
Timeline

That's where I am confused. There was a Northern District of California ruling that ties the age to the time the I-129F is filed, but what I am unclear of is does that apply to everyone or just folks who live within that District?

http://immdaily.com/pdfs/Verovkin%2012-21-07.pdf

I just perused the decision. It's difficult to read court documents before my second cup of coffee. A couple of things stand out.

The judge said she had sufficient grounds to overturn the case simply because USCIS had cited the wrong section of the INA in their denial, hence meeting the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" requirement for her to assert authority in the case. However, she didn't use that as the basis for overturning the USCIS decision.

She then went on to describe how the INA no longer specifically addresses how a K2 will adjust status, and uses this as a justification to examine prior law in order to determine how current law should be applied. She then says that USCIS applied an unreasonable interpretation of the INA in denying the adjustment of status because there is no statutory requirement that the applicant be under 21 when the application is adjudicated, yet she justifies USCIS policy that makes the applicant eligible to adjust status even though the INA doesn't specifically account for the "gap" introduced by the IMFA. The "gap" was introduced because the IMFA allowed a derivative K2 visa to be issued to a child between 18 and 21, while still technically requiring that the child meet the immigrant visa requirements in order to adjust status; i.e., that the parent/stepchild relationship be established before the child is 18. She accepts USCIS plugging that "gap" by allowing a K2 visa holder to apply to adjust status up to age 21, even though they would not have been eligible for an immigrant visa, and yet rejects USCIS regulation requiring that the adjustment of status be granted before the child is 21.

In other words, she's saying that the INA doesn't specifically address how a K2 should be handled in this case, but she doesn't like the solution that USCIS has implemented, so she's going to override their rules and apply her own. She completely neglects the fact that the INA specifically grants the Attorney General (hence, USCIS) the authority to establish policy based on the law, and does not grant this authority to district judges.

Anyway, other courts have not made similar decisions, and this has not resulted in any change of policy by USCIS. In a LexisNexis Expert Commentary, Jill Apa (an immigration attorney) states:

"This decision represents a liberal interpretation of U.S. immigration law. Immigration

practitioners should take caution that not all courts will resolve this complex dilemma in

a similar manner and that reliance on this case anywhere outside of the Northern District

of California may be risky."

http://www.damonmorey.com/publications/articlesbookreviews/ApaOnVerovkinNew.pdf

She goes on to say (among other things) that the USCIS policy memo cited by Judge Wilkin that covers USCIS policy for dealing with the age gap does specifically address the fact that the "child" must be under the age of 21 in order to be eligible to adjust status, else the "child" is no longer a "child". This is a point that Judge Wilkin omitted from her decision.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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Filed: K-1 Visa Country: Vietnam
Timeline

Pretty much the way I read it, too--maybe northern California is the way out.

You still have to get your future step-daughter a visa before she's 21. If you're just starting the K1 process now, the chances of having a visa issued before your fiancee's daughter is 21 is very slim. If you do manage to get through the process quickly enough to have a visa issued by the consulate, the visa expiration date is going to be her 21st birthday. She isn't eligible to enter the US with a K2 visa after she's 21 years old.

Just for the sake of speculation, let's assume you manage to get her into the US before she's 21 using a K2 visa. You marry the day your fiancee gets off the plane, and send out your AOS petitions the following day. You mark the daughter's package "URGENT - Possible Age Out" in hopes of getting expedited processing (which is possible). Depending on how much time you've got left before she turns 21, it's possible they could adjudicate the petition in time. Realistically, you'd need to get the petition to USCIS at least several weeks before her 21st birthday to have any hope of an expedited AOS being completed in time. Otherwise, the AOS petition is going to be denied because of the age out.

This is where the Northern California district court comes in...

Presuming you live in an area covered by this court, you have a shot of getting the USCIS decision overturned based on precedence. In order for the prior case to be applicable, you need pretty much the same circumstances - your step-daughter arrived with the K2, and you sent her AOS petition before she was 21 years old. Be prepared to give your attorney a big pile of money, and pray that you get the same judge, or at least one who agrees with Judge Wilkin's decision.

Personally, I would not want to pin my hopes on being successful in court, especially knowing that there are other routes that are almost a sure thing. Your new wife could petition for an F2B visa while she's an LPR - takes about 8 years. If your wife becomes a US citizen in 3 years then she can have the petition upgraded to F1, and shave a couple of years off the process.

If all of this seems a little unfair, consider that if you'd recently married your fiancee and were applying for a spousal visa, her daughter wouldn't even be eligible for a derivative visa unless you'd married before the daughter was 18.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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Filed: Citizen (apr) Country: Mexico
Timeline

A follow up question:

We actually have two daughters--the younger one isn't an issue--I don't think !! She is 16, and should get through the process without any issues, but help me understand whether she needs three years as an LPR before applying for citizenship or if she needs five years, and if it is five years, she will be over 21. What does all that imply ??

Thank you

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Filed: K-1 Visa Country: Vietnam
Timeline

A follow up question:

We actually have two daughters--the younger one isn't an issue--I don't think !! She is 16, and should get through the process without any issues, but help me understand whether she needs three years as an LPR before applying for citizenship or if she needs five years, and if it is five years, she will be over 21. What does all that imply ??

Thank you

The normal requirement is 5 years of residency. The 3 year exception only applies to the spouse of a US citizen. She must be at least 18 years old to apply for naturalization. There is no "age out", as there is with adjusting status.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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Filed: Citizen (apr) Country: Mexico
Timeline

Things are never simple, are they !!

Here we are, about ready to start the paperwork for the K-1 and K-2 visas, and out of nowhere I have the possibility of working in Angola and/or Nigeria for a couple of years--a great job, and an exciting experience to be sure if it comes true. I won't know if I actually get an offer for another month or two, but it sure throws a wrench into our visa plans.

1) If we go down the K-1 route and assuming it is completed over the next six months or so, I can certainly be in the States to get married, and will be back and forth from Africa anyway. The primary question is can my new wife live with me in Africa, or are there no exceptions to the living in the States for three years (with some interruptions if they are short enough) to qualify for naturalization. And if she prefers to stay here once married (or must stay), will my being away several months at a time screw up the future AOS, not to mention it wouldn't be even one tiny bit romantic.

2) If instead we got married without filing for the K-1 and went through the IR-1 or CR-1 process later, where would we start the paperwork--in Costa Rica since that is her home country, or in Africa since that is where we would be living.

3) And do I have to be living in the States at the time the paperwork for IR-1 or CR-1 is being processed. Or said another way, if we got married once we know the Africa thing is real, could we start the paperwork say six months into the foreign assignment with the idea of getting approval towards the end of the two years before we came home.

4) And if all that makes sense, am I correct that the 3-year clock towards naturalization only starts once she is in the States as an LPR, or would it start running anyway since I am working outside the States once the IR-1 or CR-1 is approved.

Like I said, life is never simple !!

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Filed: Other Country: China
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Things are never simple, are they !!

Here we are, about ready to start the paperwork for the K-1 and K-2 visas, and out of nowhere I have the possibility of working in Angola and/or Nigeria for a couple of years--a great job, and an exciting experience to be sure if it comes true. I won't know if I actually get an offer for another month or two, but it sure throws a wrench into our visa plans.

1) If we go down the K-1 route and assuming it is completed over the next six months or so, I can certainly be in the States to get married, and will be back and forth from Africa anyway. The primary question is can my new wife live with me in Africa, or are there no exceptions to the living in the States for three years (with some interruptions if they are short enough) to qualify for naturalization. And if she prefers to stay here once married (or must stay), will my being away several months at a time screw up the future AOS, not to mention it wouldn't be even one tiny bit romantic.

2) If instead we got married without filing for the K-1 and went through the IR-1 or CR-1 process later, where would we start the paperwork--in Costa Rica since that is her home country, or in Africa since that is where we would be living.

3) And do I have to be living in the States at the time the paperwork for IR-1 or CR-1 is being processed. Or said another way, if we got married once we know the Africa thing is real, could we start the paperwork say six months into the foreign assignment with the idea of getting approval towards the end of the two years before we came home.

4) And if all that makes sense, am I correct that the 3-year clock towards naturalization only starts once she is in the States as an LPR, or would it start running anyway since I am working outside the States once the IR-1 or CR-1 is approved.

Like I said, life is never simple !!

The K1 visa holder is pretty much locked-in to the USA until they have a green card in your scenario, which means you probably have to be there too, to show a bona fide relationship and pass an AOS interview after marriage. Not a good match for a two-year stay in Africa.

You start spouse visa paperwork from where you, the USC lives or if not there long enough to qualify for DCF, you file through a US service center and interview where SHE resides.

Sure, you can start from abroad but I would wait longer as the visa is only good for six months and it's likely to take no more than six months to obtain it if filing abroad.

The three year clock starts when permanent residency is effective. For an IR1 or CR1 visa, that's the US entry date.

In the spouse visa scenario the 20 year old daughter is left high and dry because the step-parent relationship must be established prior to age 18.

Edited by pushbrk

Facts are cheap...knowing how to use them is precious...
Understanding the big picture is priceless. Anonymous

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A Warning to Green Card Holders About Voting

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Filed: Citizen (apr) Country: Mexico
Timeline

Well, the only thing that is clear right now is to wait to see if the Africa thing comes through--if not, we are ready with the I-129F paperwork, and if it does come through, we just have to make some hard decisions. Just one clarification--if she is able to get a Nigerian and/or Angolan visa which is not a given if we are not married, then she would interview there and not in Costa Rica??

Thanks for all your help.

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Filed: K-1 Visa Country: Vietnam
Timeline

Well, the only thing that is clear right now is to wait to see if the Africa thing comes through--if not, we are ready with the I-129F paperwork, and if it does come through, we just have to make some hard decisions. Just one clarification--if she is able to get a Nigerian and/or Angolan visa which is not a given if we are not married, then she would interview there and not in Costa Rica??

Thanks for all your help.

She can interview at the consulate in one of those African countries if she's a legal resident there, and not just a tourist, but the consulate can refuse to accept the case. In that event, it would still end up in Costa Rica. The consulate is more likely to accept the case if she's been living there for a while, and has permanent resident status.

BTW, the citizenship clock resets if she's out of the US for more than a year continuous, even if she has a reentry permit, or if she spends more than half of the 3 years outside the US. They can also reset the clock after only six months absence, if they conclude she hasn't maintained her US residence. Keeping the green card requires maintaining residency in the US. Being eligible for citizenship requires that the residency be "continuous" - slightly different criteria.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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