Could K-2 Visa Holders Age Out of Eligibility for Adjustment of Status?

This is a true story of a man who came to the United States as a non-immigrant K-2 child of a K-1 visa holder, his mother. Let’s call him “Pedro”. Pedro and his mother entered the United States at the same time on December 1, 2002. At the time, Pedro was 20 years old. The mother married her United States citizen fiancé a day after her arrival and later filed an adjustment of status to become a lawful permanent resident (LPR). Pedro’s authorization to remain in the United States expired on December 5, 2002, the day before his 21st birthday. On December 7, Pedro filed an application with U.S. Citizen and Immigration Services (USCIS) to adjust status to that of an LPR based on his entry as a K-2 nonimmigrant. USCIS denied Pedro’s application stating that the marriage creating the step-parent/step-child relationship occurred after the son turned 18. Four years later, Pedro received a Notice to Appear (NTA) from Department of Homeland Security (DHS) charging him with being removable for overstaying his authorization to remain in the United States. While the removal proceedings were ongoing, Pedro married a United States citizen and filed an adjustment of status based on the approved immigrant petition filed by his wife. DHS moved to dismiss Pedro’s application for adjustment of status on the basis that an alien who entered as a K visa may not adjust to an LPR through any other means than through his K-2 status. The main issues in this case were: whether a K-2 visa holder can “age-out” of this status and whether a K-2 visa may adjust through any other means. This case was decided in Minnesota and the Immigration Court decided in favor of Pedro.

The K visa allows the noncitizen fiance(e) to enter the U.S. in order to marry the U.S. citizen within 90 days of admission. A minor child of the fiance(e) who is accompanying or following to join his or her parent is also eligible for a K visa. The nonimmigrant designation for a fiance(e) is "K-1" and the designation for the child of the fiance(e) is “K-2”.

The K-1 nonimmigrant classification was created in 1970 as a means for a fiancé or fiancée to bypass the lengthy wait for a nonpreference immigrant classification and enter the United States as a nonimmigrant despite an intent to stay in the United States. The sole purpose of this visa is to enter into a marriage with the United States citizen petitioner. The K-1 classification allowed the minor child who was accompanying or following to join a K-1 nonimmigrant to enter and adjust status with the K-1. The adjustment of status was automatic upon the occurrence of the marriage. In 1986, Congress eliminated the automatic adjustment, required the filing of adjustment of status petition, and imposed a two-year condition on the status as a legal permanent resident (LPR). The condition applies to both the fiancé or fiancée and the son or daughter of the alien spouse. The amendment also restricted the K visa holders from separately adjusting to LPR under the general adjustment provision of the Immigration Nationality Act. The K statues were silent whether K-2 applicants need to be under the age of twenty-one at the time of adjustment to LPR.

In this particular case, the Court found that the actual age of the K-2 holder is relevant only at the time of entry or admission under a K-2 visa. The Court also found that Pedro was eligible to seek adjustment of status on the basis of his entry as a K-2 nonimmigrant despite the fact that he was 21 years old when he filed his I-485 application. The USCIS, however, has a different interpretation. According to USCIS, the K-2 beneficiary must be a “minor child,” which is defined as an unmarried child under 21. As a result, USCIS imposes an age limitation on K-2 adjustment applicants, and will deny petitions for those who turn 21 while their application is being adjudicated. There is a case pending before the Board of Immigration Appeals (BIA) which will finally resolve this issue. Hopefully, the BIA will follow the immigration court’s interpretation in this case. If BIA does, USCIS has to follow the BIA’s ruling.

Regarding the second issue, the immigration court found that the restrictions on adjustment of status did not apply to Pedro. Therefore, Pedro was also eligible to adjust through the approved petition filed by his U.S. citizen spouse.