K-2 adjusting status

[Enigma11561 336]

How soon after arrival to the US does a K-2 have to adjust his status? the boy will turn 21 after only a few weeks here. I know I will be in for a rough time with his AOS ( aging out issue) but do we have some time to file his AOS? Must it be done ASAP? Or does it not matter if a few months go by. I know a K-1 has 90 days to get married but have no idea about a K-2. All help is appreciated. Thanks.

[Inky 1,110]

Why not file right away and get all the worry out of your way? Specially with aging out so soon after he gets here. Seems to be the better option to get started asap when he arrives specially if it will be a rough/lengthy process.

[Enigma11561 336]

It has to do with finances.The longer I can hold off, without creating a problem, the better. My understanding with aging out is that the law says as long as he is here before 21, no problem. But the USCIS has a different mentality. They want his AOS approved before 21, which cannot happen. So his AOS may be denied and then I am looking at a court procedure.

[JimVaPhuong 4,863]

How soon after arrival to the US does a K-2 have to adjust his status? the boy will turn 21 after only a few weeks here. I know I will be in for a rough time with his AOS ( aging out issue) but do we have some time to file his AOS? Must it be done ASAP? Or does it not matter if a few months go by. I know a K-1 has 90 days to get married but have no idea about a K-2. All help is appreciated. Thanks.

Unless you married his parent (gender not specified) before he was 18, then the Child Status Protection Act will not apply to him. If his AOS is not APPROVED before he is 21, then he WILL age out, and become ineligible. You can try marking his file with "URGENT: POSSIBLE AGE OUT", but even if they rush it through it's highly unlikely it will be completed in only a few weeks. Is there any possible way to get him here sooner? Even a month or six weeks before his 21st birthday will at least give you a shot.

Otherwise, he'll have to return to his home country and wait out a family preference visa.

[LiLMermaid 2]

This is what I found on the subject....so I would suggest getting the paperwork at least filed ASAP...before he turns 21.

I am in the United States on a K-2. However, I am over the age of 17 and a “step-parent/child” relationship was never established. Can I still adjust status?

Yes. You can, but you must do so before you turn 21. In the event that you turn 21, you will not be covered under the Child Status Protection Act and will no longer be able to adjust your status.

Please tell me more about the Child Status Protection Act.

There is often confusion regarding who is covered under the CSPA. Those under K-2 status should keep in mind that the CSPA is only applicable under certain circumstances.

If a child is between the ages of 18-20, a legal “step-parent/child” relationship cannot be established. Children in this age bracket can still adjust status once in the United States. However, they will not be protected under CSPA once they turn 21; this means that if status has not been adjusted by the age of 21, the K-2 visa will expire and the child will be required to return to his/her home country.

If a child is under the age of 18, a U.S. petitioner can create a legal “step-parent/child” relationship with the K-2 holder, granted the U.S. petitioner and the K-1 parent marry before the child turns 18. By establishing a “step-parent/child” relationship, the K-2 holder can utilize the measures under CSPA in the event that he/she “ages out”. This essentially means that if a child turns 21 before attaining permanent residency, he/she can still file an adjustment of status, despite being 21

[Enigma11561 336]

I married his mother only a short while ago. He was (is) 20. He will be 20 when he arrives. even if I file his AOS before he turns 21, it cannot be approved in time. But I dont think he must return to his home country immediately. I am hearing many stories about when the AOS is denied, if it is, we can still take this to court and many of these cases are ruled in favor of the child.In the interim he remains.

[milimelo 4,205]

I married his mother only a short while ago. He was (is) 20. He will be 20 when he arrives. even if I file his AOS before he turns 21, it cannot be approved in time. But I dont think he must return to his home country immediately. I am hearing many stories about when the AOS is denied, if it is, we can still take this to court and many of these cases are ruled in favor of the child.In the interim he remains.

You are ready to risk his permanent residency and see what happens in the court, relying on hearsay?

Seriously, get all the AOS paperwork all completed before his arrival - all you have to do then is copy his I-94 and visa page and send it off urgent. Mark it URGENT - POSSIBLE AGE OUT and INVOLVE your congressman as well to push it through USCIS - they can do this.

[JimVaPhuong 4,863]

I married his mother only a short while ago. He was (is) 20. He will be 20 when he arrives. even if I file his AOS before he turns 21, it cannot be approved in time. But I dont think he must return to his home country immediately. I am hearing many stories about when the AOS is denied, if it is, we can still take this to court and many of these cases are ruled in favor of the child.In the interim he remains.

I haven't read any court cases about K2's attempting to adjust status after they turn 21, but I've seen lots of accounts from people whose kids have aged out before getting a green card. I don't remember anyone successfully overcoming this with a lawsuit, but I don't doubt that it's possible. I strongly suspect this would have to be done outside the immigration court system. Perhaps in a federal appeals court. The 9th and 5th circuit courts have overturned a number of immigration court decisions, in spite of the fact that the immigration court's decision was clearly in accordance with the law. The federal appeals courts have a tendency to consider fairness, where the immigration courts consider only the law. It seems a federal appeals court is not afraid to blame USCIS slowness or incompetence for the applicant's failure to meet a deadline. That route is going to take a long time, and be extremely costly.

Anyway, the consensus of most people is that the K2 already has a significant advantage over any other type of visa for this purpose. A child is not even eligible for a K4 or IR2 unless the qualifying marriage took place before they turned 18. Only the K2 gives a child the opportunity to adjust status in spite of the fact that their parent married the USC after they were 18. One of my step children is 18, and the other is 20 (he'll be 21 next June). They have their AOS interviews next month. If I'd married their mother in Vietnam before the younger was 18 then she'd be eligible for an IR2, but the son would have had to wait out a family preference visa. The K2 made it possible for both of them to come to the US, but we knew at the outset there was chance (albeit remote) that USCIS might drag their feet, and my step son might age out. This is still possible, depending on how things go at the interview.

Do you have an attorney helping with this?

[Enigma11561 336]

I have since spoken to several immigration lawyers on this. They all say the same thing. The LAW is that k-2's do not age out as long as they are on US soil before they turn 21. They are issued valid visas by a US embassy. AOS is not important in this regard. However....the USCIS, in their infinite wisdom, has chosen to ignore this and repeatly denied AOS if the adjuducation takes place after the child is 21. There are several cases in circuit courts that have reaffirmed the law and had the USCIS reinstate residency. All because of a memo written by some Head honcho at CIS some time ago and it was never rescended. So it is possible to file for status, maybe do an infopass to hurry it up and also possible it may be approved but the general consensus is it will be denied and I will have to go to court.

I can give you links to some of these cases if you are interested.