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Denied AOS - Aged out K2

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  • Denied AOS - Aged out K2

    My friend's son arrived here on a K2 visa. My friend got married within the 90-day period. She go her greencard but her son's gc was denied. The reason was because USCIS received the AOS application on the date that the son turned 21. I helped filed an appeal last March 24, 2008. Until now we haven't received any response from USCIS. The son has EAD. Can he still work and or remain here in the country? Can anyone enlighten us about this? How long does it normally take for an appeal to be processed? Does anyone here have or knew somebody with the same case? Thanks.

  • #2
    My friend's son arrived here on a K2 visa. My friend got married within the 90-day period. She go her greencard but her son's gc was denied. The reason was because USCIS received the AOS application on the date that the son turned 21. I helped filed an appeal last March 24, 2008. Until now we haven't received any response from USCIS. The son has EAD. Can he still work and or remain here in the country? Can anyone enlighten us about this? How long does it normally take for an appeal to be processed? Does anyone here have or knew somebody with the same case? Thanks.

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    • #3
      This is not a hopeless case, but a professional help is a must.

      Comment


      • #4
        Don't they apply "Nunc Pro Tunc" concept on cases like that?
        Have all the good s.ex you can, in all the ways you can, for as long as ever you can !

        -- Sabuntium The Great

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        • #5
          Does that concept apply in immigration law/procedures as well?
          Do all the good you can, in all the ways you can, as long as ever you can.

          --John Wesley

          Comment


          • #6
            Thanks Rough Neighbor for your positive reply.

            Sabuntium, what is that concept? Thanks

            Comment


            • #7
              <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Mrs. B.:
              Does that concept apply in immigration law/procedures as well? </div></BLOCKQUOTE>

              Yes, it does apply in immigration law/procedures as well.
              But I don't know if concept itself is relevant to the case described by OP.
              Have all the good s.ex you can, in all the ways you can, for as long as ever you can !

              -- Sabuntium The Great

              Comment


              • #8
                Nunc pro Tunc is a law doctrine that means 'Now for Then' but it doesn't apply in the instant case.

                Comment


                • #9
                  <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by leila2007:
                  Thanks Rough Neighbor for your positive reply.

                  Sabuntium, what is that concept? Thanks </div></BLOCKQUOTE>

                  http://en.wikipedia.org/wiki/Nunc_pro_tunc
                  Have all the good s.ex you can, in all the ways you can, for as long as ever you can !

                  -- Sabuntium The Great

                  Comment


                  • #10
                    I'm not sure if the CPSA would apply in this case but it might be worth a look:

                    5. Success Story: Reuniting a Family Using the CSPA

                    A worried Filipino nurse who we will call Mrs. Suerte consulted with us in February. She had become a lawful permanent resident through her job in June 2005.

                    Her concern was not about herself, but about her daughter in the Philippines who would turn 21 in May 2008. Due to the backlog in priority dates, her husband and daughter had yet to get their green cards. The family had been separated for over five years and they were looking forward to a reunion. Her former attorney knew there was no issue with her husband's green card process. Sooner or later he would be joining her. But with her daughter, he was afraid that she would turn 21 before she could qualify for a green card.

                    According to the law, a spouse or a child of an immigrant is entitled to immigrant status if accompanying, or following to join, her spouse or parent. A child must be under the age of 21 and unmarried. If the child turns 21 prior to her interview, generally she cannot receive a green card. The nurse's former attorney had informed her that it looked like her daughter would "age out" before she could receive a green card.

                    Mrs. Suerte was desperate to do something to make sure that her daughter's case would be approved before she turned 21.

                    We asked Mrs. Suerte's former attorney to produce all documents relating to her immigrant petition. We reviewed the papers and found out that her employer had filed an immigration visa petition (I-140) on behalf of Mrs. Suerte in March 2004, but that the petition was not approved until June 2005, over 14 months later.

                    Since the petition was pending for a long time, we realized there was a possibility that the Child Status Protection Act ("CSPA") might be applicable in this case. The details of this law can be accessed from our "Child Status Protection Act" page at

                    http://shusterman.com/cspa.html

                    Under CSPA, her daughter qualified as the "derivative beneficiary" of the I-140 petition submitted on behalf of her mother. Therefore, her "CSPA age" is determined by the following formula: Start with the date that her immigrant visa became available. Then subtract the number of days that the immigrant visa petition was pending. Since the daughter's 'CSPA age' was under 21 after that calculation, she remained a child for purposes of her application for permanent residence.

                    We informed Mrs. Suerte that she had nothing to worry about since her daughter would have an extra 14 months after turning 21 to continue to be eligible for her green card.

                    We sent our attorney representation form to the U.S. Embassy in the Philippines, and we started keeping a very close watch on the State Department's monthly Visa Bulletin.

                    In April 2008, her visa number became current and in May she was called for an interview at the Embassy. By this time, she was over 21 years of age though her CSPA age was 19 years and 10 months.

                    At the interview, the officer did not approve her case since he was in doubt about her eligibility for a green card since she had already turned 21. However, instead of denying it outright, he gave our client one more chance to explain her eligibility.

                    The family called us in desperation from the Philippines. We provided them with the necessary papers to prove her eligibility.

                    The daughter went back to the Consulate and this time they agreed with us and approved her green card!

                    Mrs. Suerte is doubly blessed, for not only did her daughter receive her green card before her 21st birthday, but also before the EB-3 category "blacked-out" on July 1st.

                    From Shusterman's Immigration Update June 2008

                    http://www.shusterman.com/siu.html#5
                    "What you see in the photograph isn't what you saw at the time. The real skill of photography is organized visual lying."

                    Comment


                    • #11
                      From another site:

                      On June 26, 2008, an Immigration Judge in Bloomington MN ruled that K-2's did NOT age out. A salient procedural fact -- the IJ reversed herself on reconsideration! Another salient fact, the non-citizen in question had also married a US citizen. The IJ ruled that the subsequent marriage was irrelevant to the K-2 adjustment, and on top of that -- the IJ ruled that the alien could also adjust based upon the marriage!

                      I am currently in a hearing on this issue in Anchorage AK. We saw the IJ briefly this morning and will return this afternoon for a brief factual prove-up -- the IJ indicated that he would take the matter under "submission" and later issue a ruling by mail.

                      On the District Court level, there is the Verovkin case out of San Francisco in which District Court Judge Wilken ruled that K-2's do not age out. However, there is also the Jiang case from Fresno, where District Judge O'Niel went the other way. CIS did NOT appeal Verovkin. Jiang HAS appealed and her case is pending before the 9th Circuit Court of Appeals. Jiang has been fully briefed and is awaiting further action by the Court.

                      There was one District Court case in Chicago which was dismissed on procedural grounds. There is one case pending in District Court in Detroit and summary judgement is pending.

                      Comment


                      • #12
                        Interesting cases, maybe there is still indeed hope for you Leila2007!
                        Do all the good you can, in all the ways you can, as long as ever you can.

                        --John Wesley

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