Markesh писал(а):
pigeon писал(а):
Важно закончить весь процесс с документооборотом до 21 года а именно получить приглашение на интервью на первую гринку до 21 года!!!!!
нет это не так, и не важно сколько восклицательных знаков вы поставите, все равно не так.
Согласно правилам моментом когда аппликант перестает aged out - является момент подачи аппликации в USCIS, даже если интервью и все процедуры будут после того, как ребенку исполнилось 21, то по adjusting of status ребенку будет under 21
Еще раз правило So long as the K-2 visa holder was under 21 at the time his adjustment of status application was filed with the USCIS she / he is eligible for adjustment of status
первое (основное) дело Verokin v. Still (2007) и у всех офицеров есть инструкции по этому поводу.
Только одного не понимаю, зачем давать советы, там где не знаете?
Очень жаль что некоторые люди вот так некомпетентно могут сказать ждите главное что вы въехали до 21 года.... ребята давайте все таки будем давать грамотные советы! еще раз ВАШЕ ИНТЕРВЬЮ ДОЛЖНО БЫТЬ НАЗНАЧЕНО ДО 21 года..... это закон здесь такой.....поэтому торопитесь ....
вот читайте:
рекомендации в случае получения rejection на k2 аппликанта:
It’s easy for anyone to criticize the existing K-2 “aged out” policy, but ideas, leading to common sense solutions, will do much to restore the confidence of these young people aspiring to become U.S. citizens while preserving the intent of the USCSIS’ mission statement.
The K-2 “age out” issue constitutes a policy impasse that all parties can agree about. The absence of a universal medium to approach this issue indicates that the government agencies and the plaintiff families will continue wasting time and valuable resources to prove their viewpoint and to achieve a favorable result. Compared to other complex immigration issues, the K-2 policy just needs to be clarified, amended, or abolished, according to the “Void for Vagueness” doctrine. As a scholar in political science, foreign affairs, and law, I cannot ignore this issue, given its impact on my personal life and career outlook. Thus, I have developed these pragmatic policy recommendations:
Policy Recommendation #1:
Conduct a congressional hearing to discuss whether Congress had actually intended that K-2 beneficiaries would remain eligible for adjustment of status even after they have reached the age of 21. In other words, Congress needs to explain if the term “minor child,” as used in 8 U.S.C. § 1255(d), is only used for a person who seeks entry to the United States as a K-2 visa holder. Or if the term “minor child” is also applied to a K-2 beneficiary who, having already entered the U.S., and whose parent has married a U.S. citizen within a required 90-day timeframe, is applying to adjust his or her status to that of lawful permanent resident. This is the core of the current debate between the government and the courts who ruled in favor of K-2 applicants. Such a hearing may end the need to interpret Congressional intent by government agencies, lawyers, and judges.
Policy Recommendation #2:
The U.S. Department of State should stop issuing K-2 visas to those persons who are likely to “age out” before their cases can be processed by USCIS . Or, at a minimum, applicants should be informed by competent visa-issuing agencies (usually U.S. consulates) in their respective countries of origin about the probability of them “aging out.” If implemented, this policy would allow applicants to carefully weigh all the consequences, obstacles, and outcomes before they decide to leave their countries of origin and enter the U.S. as K-2 visa holders.
This measure will at least prevent young people from prematurely quitting their jobs, interrupting their studies, and selling their property (i.e., breaking economic ties with their countries of origin). Otherwise, those K-2 beneficiaries who have “age out” and are facing deportation will have no means for reintegrating into their respective countries of origin.
This policy is harsh because it is not in favor of prospective K-2 visa beneficiaries. But it will, at a minimum, prevent them from wasting valuable time, money, and from making premature decisions before they chose to depart for the U.S.
Policy Recommendation #3:
Amend the 2002 Child Status Protection Act (CSPA), which protects children of immigrants from “aging out” as a result of delays in processing. The Act includes certain immigrant visa categories but, unfortunately, is interpreted to exclude children who fall under the K-2 category on the grounds that it is classified as a non-immigrant visa. It is like saying that a birthday party is for children only; however, after the children have arrived to the party, they are told that only blond-haired children are allowed in, and that all black-, brown-, or red-haired children should be excluded from the event.
The judge in Verovkin vs Still (the first K-2 case won by a k-2 visa beneficiary in a federal court) also talks about the CSPA and the principle of equity in jurisprudence. Here is what Judge Claudia Wilken said:
“[I]t is unlikely that Congress’ failure specifically to apply CSPA’s aging-out protections to K-2 children reflects a conscious choice to exclude them. It is more likely that their situation was overlooked, as it was overlooked when Congress eliminated the provision for the automatic adjustment of their status and failed to replace it with a provision entitling them to an immigrant visa” (p.18). In passing the Act, “Congress recognized the fundamental unfairness of letting a child applicant’s eligibility for permanent residence turn on how long it takes USCIS to process his or her application. See H.R. Rep. No. 107-45, at *2 (2001) (finding a need to address “the predicament of these aliens, who through no fault of their own, lose the opportunity to obtain an immediate relative visa before they reach age 21”). The same principles of fairness and equity apply with equal force in Plaintiff’s case.
Indeed, the principle of equity should serve as a foundation for amending the CSPA because it is one of the oldest and most generally accepted principle of both common law (which is the basis of the law of the United States) and international law. Hugo Grotius, the “father” of international law, cited Aristotle in laying foundation for application of the principle of equity to international law. Aristotle (384 BC – 322 BC) wrote the following in his Nicomachean Ethics, bk. 5, ch. 10 (pp. 141-142):
“[I]n a situation in which the law speaks universally, but the case at issue happens to fall outside the universal formula, it is correct to rectify the shortcoming, in other words, the omission and mistake of the lawgiver due to the generality of his statement.” This definition has since been used universally by courts and lawyers throughout the world.
Another possibility is an amendment to the Immigration and Nationality Act (this amendment proposal can be found on the website of American Families United under “End Stepchild Deportation” section).
Policy Recommendation #4:
Use the 10th Circuit Court of Appeals Carpio vs Holder decision as a precedent in resolving similar cases (K-2 “aging out”). If USCIS and its immediate bosses refuse to recognize the courts’ jurisdiction in this matter, such a decision will be in direct contradiction to the system of “checks and balances” aimed at preventing one of the branches of power from abusing its authority. Immigration law is federal law, and federal courts should and do exercise jurisdiction in this matter. In fact, the 12 federal circuit courts of appeals are just one step below the Supreme Court of the U.S., which is the court of last resort.
By not allowing courts to “check” on executive power, the government (i.e., the executive branch) is ignoring one of the fundamental principles set forth in the U.S. Constitution. The aforementioned system of “checks and balances” applies to the executive branch which includes, among other agencies, the USCIS , the U.S. Department of Homeland Security, and the U.S. Department of Justice (which oversees the Executive Office for Immigration Review and the Board of Immigration Appeals). Historically, the executive branch has been the most prone to abuse its own power. By not allowing courts to exercise their authority of judicial review, agencies within the executive branch are acting in an authoritarian manner. This is detrimental to the integrity of a democratic state.
Policy Recommendation#5:
Those K-2 visa holders who had already been admitted and who have “aged out” should still be allowed to adjust their status. This reasoning follows common sense, fairness, and the long-established doctrine of lenity (which directs that statutory ambiguities in deportation provisions should be resolved in favor of the noncitizen) as argued by Brian G. Slocum and many federal judges. A deportation order after a period of years spent outside the country of their origin would be inhumane and tantamount to exile or punishment for a crime they didn’t commit.
Policy Recommendation #6:
The President of the United States, based on the so-called “Take Care Clause” of the Article Two of the United States Constitution (the President “shall take care that the Laws be faithfully executed”), can issue an Executive Order ordering the U.S. Department of Homeland Security to change its policy with respect to K-2 “aged out” beneficiaries. Current government interpretation is (based on opinions of various immigration and federal judges) incorrect, unfair, and leads to absurd results. It damages families of U.S. citizens and misinterprets congressional intent.
Policy Recommendation #7:
This is a complementary policy recommendation to any of the already-discussed ones: a new, independent system of immigration courts must be created.
The fact that immigration courts have not reached a consensus about how to interpret immigration law in K-2 cases, as well as in many other immigration issues, demonstrates the conflict within the existing framework. In my opinion, such an inconsistency is due to the fact that immigration courts differ from the rest of the U.S. courts. They are not part of the federal judiciary. Instead, they are part of the U.S. Department of Justice – a federal executive department. Immigration judges work under and are answerable to the Attorney General.
On Monday, February 8, 2010, the American Bar Association (ABA) backed the idea of creating a new, independent immigration court system. This issue was covered in details by the New York Times reporter Julia Preston.
According to the New York Times article, the ABA recommended Congress to create “a separate immigration court system that would be similar to federal courts that decide tax cases.”
One reason for such a reform is the increasing number of immigration cases that are arising as a result of an “intensified federal crackdown on illegal immigration.” Another reason is the emergence of a substantial number of critics who “doubt the court’s impartiality.” In other words, there is a growing concern that judges working for the Justice Department are “inclined to favor the government.”
The problem of questioning the immigration court’s transparency and impartiality needs a more thorough analysis, in my opinion. How can one explain the fact that some immigration courts that hear K-2 “aged out” cases favor the non-citizens and other courts rule in favor of the government? Isn’t there something suspicious about the fact that federal courts predominantly rule in favor of K-2 visa beneficiaries (as in both Verovkin v. Still and Carpio v. Holder) by overturning the decisions of immigration courts? Doesn’t it seem natural for immigration courts to take the government’s side in interpreting immigration laws because they are ,in fact, part of the same government structure?
In order to put an end to this controversy, to restore credibility of immigration courts, and to improve their productivity, as the ABA has proposed, “immigration courts should be removed from the Department of Justice and set up as independent courts, still within the executive branch, under terms in Article I of the Constitution.” This will prevent immigration judges from favoring any government agency that they are subordinate to due to their newly- acquired ability to “seek funds [directly] from Congress” instead of being at the mercy of the U.S. Department of Justice.
и только 2 прецедента когда дело в связи с aged out выйграно в суде, в тысячах других случаев это разбитые семьи и иммигранты к2 на нелегальном положении. их истории здесь:
http://ivanforusa.wordpress.com/2010/01 ... /#comments
