THE 10TH CIRCUIT FINDS K-2 VISA HOLDER OVER 21 YEARS OLD DID NOT AGE OUT

This article is the answer to my previous article entitled “COULD K-2 VISA HOLDERS “AGE OUT” OF ELIGIBILITY FOR ADJUSTMENT OF STATUS? On January 12, 2010, the Court of Appeals 10th Circuit issued a decision stating that K-2 visa holders over twenty-one years old did not age out. For those who were not able to read my previous article, the facts of the case of are as follows. In 2002, Pedro, along with his mother, entered the United States on a K visa. K visa allows alien fiancées/fiancés (K-1 visa holders) and their children (K-2 visa holders), to enter the United States to marry United States citizens. Under our immigration laws, upon such a marriage, eligible K-1 visa holders and their children under age twenty-one may adjust their status to that of lawful conditional permanent residents. Pedro, upon the marriage of his mother to a United States citizen, and six months prior to his 21st birthday, applied for an adjustment of status to become a lawful conditional permanent resident. Two-and-one-half years after he filed his application, the United States Citizenship and Immigration Services (USCIS) denied his request on the ground that he was no longer under age twenty-one. An immigration judge agreed with that conclusion and the Board of Immigration Appeals (BIA) affirmed. Pedro appealed and argued that he need not be under 21 when the application for adjustment of status was adjudicated and that it is enough that he was under 21 when he filed it. Pedro won. The Court of Appeals concluded that a K-2 visa holder who timely applies for an adjustment of status must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated. In other words, it is the date on which a K-2 visa applicant seeks to enter the United States that should be used to determine whether he or she is a “minor child.” I think it is safer to interpret “seeks to enter” as the date that the K-1 and K-2 visa applications are filed with the consular officer in the country of origin.

There are six steps involved in obtaining lawful permanent resident status for K-1 and K-2 visa holders. First, on behalf of the alien and his or her minor children, the U.S. citizen must file a fiancé(e) petition with USCIS. In order for the petition to get approved, the U.S. citizen must establish, among other things, that he or she and his or her fiancé(e) had previously met in person within 2 years before the date of filing the petition and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival. Second, upon the USCIS’s approval of the fiancé(e) petition, the alien and his or her minor children must apply for K visas with the United States consular office in their country of origin. Under our immigration laws, a “child” is defined as an unmarried person under twenty-one. Third, once the K visas are issued, the fiancé(e) and his or her minor children may enter
the United States. Fourth, the citizen and his or her fiancé(e) must marry within ninety days of the fiancé(e)’s entry. If the marriage does not occur within 90 days, the fiancé(e) and his or her children must depart from the United States. If they do not depart, they are subject to removal. This is true even if the alien found another fiancé or fiancée to file a petition on her or his behalf. Fifth, the alien and his or her children must file an application for an adjustment of status to become a lawful permanent resident of the United States. If approved, the status is conditional for two years. The last step is the filing of petition to have the conditional status removed. This is done during the 90-day period before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence.

I believe the decision of the Court of Appeals was in accordance with the basic principles of common sense and fairness. An individual who obtained a K-2 visa and applied for an adjustment of status several years before his or her twenty-first birthday would have no way of knowing when his or her application will be adjudicated. If USCIS does not act on the application for years and the K-2 visa holder turns 21 before it is adjudicated, then her or his efforts and time are rendered useless. The Congress does not intend or authorize such an unfair practice.