K2 adjustment of status: K1 is in abusive relationship

Anahit

Registered Users (C)
Hello. I'm trying to get some answers for someone I know. She came on fiance visa, got married within 90 days, applied for adjustment, got her conditional green card in July, 2021. Her 2 sons (15 and 17) arrived to US on K2 in May, 2021. Now they need to adjust their status. Here is the problem: the citizen husband started drinking and abusing his wife. It became worse after the kids came. The police got involved recently: they helped the wife and the kids to get out of the house. Now, they are staying with friends and don't want to go back to him anymore even though he's asking them to, making a lot of promises. But this happened a few times, and of course, he never kept his promises. Question: will the kids be able to adjust their status without him? Obviously, he won't sponsor them if they don't go back to him. Thank you in advance!
 

newacct

Well-Known Member
This is a very interesting question. A direct Adjustment of Status based on K-2 probably won't work as that will require an I-864 Affidavit of Support from him to cover them, which I'm assuming he won't agree to do. (Were they included as immigrants on the original I-864 for the mother? I am not sure whether it would be possible to use that now.)

VAWA allows a battered spouse or child (including stepchild) abused by a US citizen or permanent resident to self-petition. However, I believe that, in the case of a VAWA self-petitioning child, the child has to be themselves abused, and not just be the child of someone who was abused. If she was a VAWA self-petitioning spouse, the children could immigrate as her derivative beneficiaries without having been abused, but she didn't immigrate through VAWA, so I don't think that would work.

Another option is she could petition the children (with I-130s) as children of a permanent resident. It would be in the F2A category which currently doesn't have any wait for visa numbers. However, they cannot do Adjustment of Status because 1) since they are not in the Immediate Relative category, they need to be in status at the time of filing I-485, and their K2 status (which only lasts 90 days) has expired, and 2) someone who entered on K status is barred from Adjustment of Status through anyone except the US citizen petitioner who petitioned them. So this means they would probably have to do Consular Processing abroad. Consular Processing requires waiting for the I-130 to be approved, and then it goes to NVC and the consulate. This is a long process, and they could wait in the US until they need to go abroad for the interview, etc., but they need to be careful about unlawful presence. The children will start to accrue unlawful presence when they turn 18. If they leave the US after accruing 180 days of unlawful presence, they will trigger a ban, so they need to make sure they leave the US before age 18 + 180 days and then wait abroad for the rest of the Consular Processing.
 

Anahit

Registered Users (C)
Thank you for a quick response, newacct!
No, the kids were not included in I-864 for their mother.
Yes, their I-94 expired on August 26. The older son turns 18 in a week. His visa expires on 09/16/2021. The younger son's visa expires on 10/07/2021.
Could she petition her sons being a conditional resident?
And, another question I did not find the answer for anywhere: K2 status derives from K1. She is no longer K1, she is a conditional resident already. Do K2s able to adjust their status in this case (assuming she does go back to her husband)? Will there be any technical issues because of her K1 being gone?
 

newacct

Well-Known Member
Could she petition her sons being a conditional resident?
Yes

And, another question I did not find the answer for anywhere: K2 status derives from K1. She is no longer K1, she is a conditional resident already. Do K2s able to adjust their status in this case (assuming she does go back to her husband)?
Yes. The only things that matter are that the K1 married the citizen within 90 days of entry, and the K2 were unmarried and under 21 at the time of entry. (And the citizen petitioner has to be willing to file I-864)
 

Anahit

Registered Users (C)
2) someone who entered on K status is barred from Adjustment of Status through anyone except the US citizen petitioner who petitioned them.
So, consular processing is the only option for both boys, correct? Even though, the younger one is ok to stay here until the interview day. The other son, who turns 18, needs to leave the country asap. And, even if they wait until the mother becomes a citizen, they still can't adjust thru AOS (well, at least the younger one who will be under 21) because they entered as K2? Please confirm or correct me if I am wrong. TIA
 

newacct

Well-Known Member
So, consular processing is the only option for both boys, correct? Even though, the younger one is ok to stay here until the interview day. The other son, who turns 18, needs to leave the country asap. And, even if they wait until the mother becomes a citizen, they still can't adjust thru AOS (well, at least the younger one who will be under 21) because they entered as K2? Please confirm or correct me if I am wrong. TIA
Yes, that is correct.
 

Anahit

Registered Users (C)
And, one last question please. If they decide to go back and adjust their status that way (assuming the citizen petitioner files I-864 for the boys), is there a need for I-130 since their stay on I-94 has expired on August 26 (even though their K2s are not expired yet)?
 

newacct

Well-Known Member
And, one last question please. If they decide to go back and adjust their status that way (assuming the citizen petitioner files I-864 for the boys), is there a need for I-130 since their stay on I-94 has expired on August 26 (even though their K2s are not expired yet)?
No. As long as the K1 married the citizen within 90 days of entry, the K1 and K2s can adjust status without an I-130. They are in the Immediate Relative category and don't need to be in status at the time of filing I-485.
 
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