A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the INA is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa. Matter of Le, 25 I&N Dec. 541 (BIA 2011)
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.
USCIS’s approach was fundamentally unfair. For example, under the USCIS approach, even an individual who obtained a K-2 visa and applied for adjustment of status several years before his or her twenty-first birthday would have no way of knowing whether the entire lengthy process might be wasted because of the time that the application “languished in the agency’s filing cabinet.” Congress could not and did not intend for such an unfair practice. It denied K2 adjustments because alien was was deemed to have “aged out”, meaning he had already reached the age of 21 before the adjudication of his AOS application was accomplished.
Under Matter of Le, an applicant, who entered the U.S. on a K-2 visa and turned 21 before filing for adjustment of status based on her mother’s marriage to the petitioning U.S. citizen, is nonetheless eligible for adjustment.
The BIA held that an alien who enters on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011)
