This week, the Tenth Circuit Court of Appeals published a decision holding that a K-2 visa holder (the child of a fiancée of a United Statescitizen) can adjust his or her status to lawful permanent resident despite turning twenty-one while the application is pending.  The case, Colmenares Carpio v. Holder, specifically citing Choin v. Mukasey and Verovkin v. Stillconcluded that the applicant “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.”  Although the United States Citizenship and Immigration Service (USCIS) has repeatedly and wrongfully denied applications for adjustment of status based on a K-2 visa because the applicant was twenty-one years of age or older, the Federal Courts have stepped in once again, protecting the rights of immigrants and their families.   

To become a lawful permanent resident, the fiancée (or child of a fiancée) of a United States citizen must go through four steps.  First, the non-citizen must obtain a K visa through a visa petition filed by her United States citizen fiancée.  The second step towards permanent residency is marriage to the United States citizen. Once the K visa is approved, the non-citizen (and their minor children) can legally enter the United Statesto get married using either a K-1 or K-2 visa. If the couple is married within ninety days, the non-citizen spouse (and her children who entered with a K-2 visa) can take the third step and apply to adjust her status to that of a lawful permanent resident.

Before 1986, this application for adjustment of status was automatic.  In 1986, however, in response to certain marriage fraud concerns, Congress enacted the Immigration Marriage Fraud Amendments ("IMFA").  The IMFA deleted the language that made adjustment of status for K visa holders automatic, and therefore required K visa holders, like other nonimmigrants, to adjust their status with an application pursuant to INA § 245. Congress also added a provision to the law which provided that K visa holders could adjust to permanent resident status only “as a result of the marriage of the nonimmigrant … to the citizen who filed [the K visa petition].”  This means that an immigrant entering the country on a K visa cannot adjust his or her status to that of a permanent resident based on a marriage to a person other than her original fiancée, or on any other basis.  The IMFA also added a new fourth step to the process - K visa holders can first adjust only to conditional permanent resident status.

In Choin, Verokin and now Colmenares Carpio, the federal courts have rejected USCIS’s position and instead considered the language of the applicable statutes. The Immigration and Nationality Act provides that a child of a fiancée who accompanies or follows to join his parent may enter the United Stateswith a K-2 visa.  Furthermore, the Act defines a child as an unmarried person under the age of twenty-one years of age.  This cross reference suggests that the age at which an applicant “seeks to enter” the United States is controlling and not the age at the time the adjustment of status application is decided.  Moreover, the plain language of the statute makes clear that the age of the “the minor child” is the age before the marriage occurs and before the child enters the United States.

 In short, there is no statutory requirement that K-2 visa holders demonstrate that they are still under twenty-one when they apply for adjustment of status to permanent resident.  Rather the Court held that “a K-2 visa holder who applies for adjustment of status must be under twenty-one at the time he or she ‘seeks to enter the United States.’”   According to the statutory language, the date an individual “seeks to enter the United States” can be read as either the date the United States citizen files a petition for the K-1 or K-2 visa with USCIS or the date that the K-1 or K-2 visa applications are filed with the consular officer in the country of origin.   

Finally, the Court noted that USCIS’s approach “is 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. Although the Courts have stepped in, USCIS may continue to deny K-2 visa holders who are otherwise eligible to adjust their status.  Until there is a change in USCIS policy, K-1 and K-2 visa holders should consult with a trusted and experience attorney who can ensure your application is treated fairly.        

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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.