World Journal Weekly Q & A - August 14, 2011K-2 Denied at Interview for Adjustment of Status Because of No Relationship with Stepparent and Now Almost 22 Years Old Has a New Chance.A K-2 son asks: I came to the U.S. under a K-2 status with my father who was a K-1 because he was an engaged to marry with a U.S. citizen. I was 20 at the time. My father married 60 days after coming to the States, and they're living a happy life. The problem was when I tried to apply for my adjustment of status to permanent residence along with my father. He was awarded the green card, and I was denied. The reason was that I could only immigrate if my father married my stepmother before I was 18. Now I am 21, almost 22, and wonder how I can stay in the country legally. Dear reader: Luckily for you, the Board of Immigration Appeals just gave a ruling, Matter of Le, that covers your situation. Under the new ruling, you are allowed to adjust status to permanent residence as a dependent of your father and the fact that he married your stepmother after you turned the age of 18 is not relevant. The BIA considers as relevant factors that the K-1 parent married the U.S. citizen within 90 days of coming to the U.S. and that the marriage is bonafide. It also considered the age factor and stated that the relevant time for determining age is the date of entry, and not any date in the future. So long as the K-2 is under the age of 21 at the time of entering the U.S. under K-2 status, he/she has met the definition of a child for purposes of adjusting as a derivative child. This is a good solution to a pressing problem for many K-2 children whose parents married the stepparents after they turned 18 and were previously deemed not eligible for adjustment of status because they had no parent-child relationship with the stepparent. It also gives a positive answer as to why the law would allow a K-2 child to enter as a dependent only to place him or her afterwards in a limbo state of being unable to obtain residence status with the natural parent. I-130 Petitioner Mother Passed Away - Reader Asks How to Save the Case and If Beneficiary's Family Can Obtain Visiting Visas.Jiang reader asks: My mother, a U.S. citizen, filed I-130 paper for my younger brother in Taiwan in 6/2000. Unfortunately, she passed away in 8/2002. In 2008, we received papers from NVC requesting to pay $400.00, including my sister-in-law, totaling $800.00 fee. My brother wanted for extension, therefore, I sent in papers for extension in 2009 but did not get any response. In 2010, I called and requested extension. In 2011, I sent mail for extension. And finally, we received a response that the extension was granted. My questions are:
Dear reader: 1. In order for your younger brother in Taiwan's case to continue, you must notify the National Visa Center of your mother's passing away and request that the approved petition be sent back to U.S.C.I.S. to allow you and your family an opportunity to request humanitarian reinstatement of the I-130 approval. Because there is no timeline for humanitarian reinstatement cases, case processing times to obtain an adjudication could take well over a year. There is also no form to fill out to request the benefit. U.S.C.I.S. will want a substitute financial sponsor related such as you and any and all evidence and statements that reinstatement of the approval would be for humanitarian reasons. Reasons which may be favorably looked at may be the quality of the brother's life in Taiwan, the number of relations in the U.S. as opposed to Taiwan, and other economic, social, or emotional hardships on either side caused by the separation of family members. 2. Visiting visas are given in the discretion of U.S. consuls, in this case the American Institute in Taiwan. Please note that the non-immigrant application form, DS-160, has no question on whether a visa petition has ever been filed on behalf of an applicant. Nevertheless, even in situations where a consular officer obtains knowledge that an immigrant visa petition has been filed on behalf of an applicant for a visiting visa, a visa can still be issued if the officer is convinced that the applicant has every intent to return the home country. Also in this case, it should be remembered that the younger brother is the beneficiary of the I-130 petition, but his family members have not yet applied for immigration until they file Form DS-230 application for immigrant visa and alien registration with the National Visa Center. Even if they are directly questioned by the consular officer on your brother's applying for an immigrant visa petition, they should be able to answer that they have not applied for U.S. immigration. Asylee Dependent Wonders if Naturalization Denial was Proper and Whether She Can Get Her I-94 Card Back.An anxious reader asks: I am a family member of an asylee and in the process of being naturalized. I divorced my husband of 32 years in 6/2010. My green card is not a marriage green card. During my 5 years of holding green card, I went back to China twice, totaling 150 days. My 2nd visit was to see my critically ill 80 years old mother. At my 1st naturalization interview, I passed 100 questions section, but failed on form and conversation sections. The 2nd interview, I passed English writing part, but the examiner said that based on my green card, I could not go back to China and asked my of the reasons for my divorce. I was not able to answer the question in English. He said my English was not good and that we could not communicate, therefore, I again did not pass. However, he took my I-94 and I did not know why. Should I request for the return of my I-94? I was told that if I passed the test, my I-94 would be taken back by CIS. Recently, I received a letter from CIS, saying that my English was not good enough to pass it. If I want to contest, I could appeal. How should I get my I-94 back? Do I need to hire an attorney for this? Dear reader: I do not know the circumstances under which you obtained an I-94 form, and so I can only give you general principles. Family members of asylees are not precluded from visiting the home country since they are not the principals in asylum cases. It would not appear that your going back to China twice in five years totaling 150 days would be a major obstacle in your obtaining naturalization. The question pertaining to the reason for the divorce was not relevant since you were married for 32 years and, as you point out, your green card was not a marriage green card - but your answer was relevant in establishing that your English was not sufficient to pass. An I-94 card is usually given to non-immigrants, and not persons who have permanent residence status. An I-94 can be given to a permanent resident, however, where the individual does not have a valid passport and requires proof of permanent residence after passing a green card interview. It is also possible that an I-94 had to be given to you if you re-entered the U.S. without your green card. For asylee principals and derivatives, U.S.C.I.S. will usually issue I-94 cards denoting the asylum status, but they generally have no importance once an individual has obtained his or her green card. Because many asylum adjustment cases are granted without interview, U.S.C.I.S. fails to collect the cards. However, it would appear that U.S.C.I.S. has a right to retain them once they encounter a green card holder. Insofar as naturalization is concerned, it appears that you must study and try again.
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Copyright © 2003-2012 Alan Lee,
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