Для тех, кто как я надееется на изменение ситуации детей по К-2 age over во время рассмотрения на AS.
USCIS K2 "Age Out" Problem Solved. -Law change?? Board Sets Favorable Precedent for Children of Fiancées (K-2 Visa Holders)
The American Immigration Council's Legal Action Center (LAC) applauds the Board of Immigration Appeals (Board) for advancing family unity in its June 23, 2011 decision, Matter of Le. The Board’s long-awaited ruling favorably resolves the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. when under age 21, is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. In doing so, it rejected the Department of Homeland Security’s position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.
The Board’s decision is consistent with the position that the American Immigration Council and the American Immigration Lawyers Association advocated in amicus briefs submitted to the Board in approximately a half dozen other cases where the child turned 21 after being admitted to the United States. The noncitizens in these and the many other cases before both Immigration Judges and U.S. Citizenship and Immigration Services offices throughout the country now will be able to become lawful permanent residents as Congress intended.
"Regarding K-2's who make the mistake of having a 21st birthday while waiting for AOS adjudication, a ruling from the BIA may change all that"
Someone finally sorted through all the legal jargon
we concluded that the alien fiancé(e) parent establishes visa eligibility and availability in satisfaction of section 245(a) of the Act at the time of admission to the United States with the K-1 nonimmigrant visa, provided that he or she enters into a bona fide marriage with the fiancé(e) petitioner within 90 days. The alien’s admission to the United States was selected as the appropriate date to establish eligibility for adjustment.
Thus, the two conditions for adjustment of status pursuant to former section 214(d) of the Act, under which alien fiancé(e)s and their derivative children
adjusted their status prior to 1986, were that the marriage between the petitioner and the alien fiancé(e) had to occur within 3 months of the alien’s Cite as 25 I&N Dec. 541 (BIA 2011) Interim Decision #3719 546 admission and that the applicants had to be otherwise admissible at the time of adjustment. As we observed in Matter of Sesay, the purpose of the IMFA was not to alter this process, but was, instead, to address the problem of marriage fraud. Id. at 437. Accordingly, we looked to the prior law to inform us as to how these nonimmigrants can establish immigrant visa eligibility and availability for purposes of section 245(a). Consistent with our analysis in Sesay, we now conclude that the derivative child of an alien fiancé(e) also satisfies these requirements at the time of admission to the United States with the K-2 nonimmigrant visa, conditioned on the timely, bona fide marriage of the alien fiancé(e) parent to the United States citizen petitioner. Id. at 440.A BIA (Board of Immigartion Appeals) decision should pretty well be binding on the USCIS, hopefully effective immediately.
The two points I've highlighted were blatantly disregarded by the USCIS in all the over-21 denials.
the new determination would be made at the time of admission, as per "prior law"
we conclude that the age of the derivative child at the date of admission is controlling
we find that a K-2 derivative child of a fiancé(e) visa holder must establish visa eligibility and availability in satisfaction of section 245(a) at the time of his or her admission to the United States.
BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most BIA decisions are subject to judicial review in the federal courts.http://www.justice.g.../vol25/3719.pdf
The second link simply shows the authority that the BIA has over USCIS
BIA decisions like this usually result in policy changes with USCIS. We should be watching for a corresponding change to the Field Adjudicators Manual.