I'm in K-2 status, turning 21 soon -- will CSPA help me get a green card?

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Question:

I recently entered the U.S. in K-2 status, as my mother was the fiancé of a U.S. citizen. My mom and stepdad got married and he is planning to file the papers to adjust my status to permanent resident in the U.S., but I’m worried as I’m turning 21 very soon and I was told that I can’t adjust if I turn 21 before he files the paperwork. Someone else told me that the Child Status Protection Act helps people like me. I’m confused! What should I do?

Answer:

Ideally, you should make sure that your stepfather files a Form I-485, Application to Register Permanent Residence or Adjust Status with U.S. Citizenship and Immigration Services (USCIS) as soon as possible before your 21st birthday in order to obtain a green card without complication. (See Nolo's articles on "Adjustment of Status" for more on this process.) You should consult an experienced immigration attorney who can help you to successfully file your adjustment application in light of these recent changes in immigration law and your upcoming 21st birthday.

You are considered a “child” for U.S. immigration purposes if you are both unmarried and under age 21. The Child Status Protection Act (CSPA) was a great step forward in protecting child beneficiaries of certain visa petitions from “aging out” before USCIS could approve their applications. However, USCIS initially issued guidance that the CSPA does not protect those in K-2 status because they technically don’t have a visa petition filed on their behalf until they file for adjustment of status after their parents’ marriage. Until recently, USCIS refused to apply the CSPA to adjustment applications from K-2 stepchildren that were received after they turned 21 – denying them the ability to adjust their status to permanent resident and forcing them to leave the United States and endure a long wait for a green card to become available.

The good news is that in June 2011, the Board of Immigration Appeals in Matter of Le decided that the CSPA should apply to K-2 visa holders and that the age of the child should be “fixed” as of the date of his or her admission to the United States. Now K-2 visa holders who were denied green cards because they turned 21 before their adjustment applications were received by USCIS should be able to reopen their case and either obtain a green card from USCIS – or adjust status in removal (deportation) proceedings.

Unfortunately, as of early 2013, USCIS has still not issued official guidance on how it will apply Matter of Le and continues to maintain that the CSPA only has “limited coverage” for K-2 visa holders. Recent K-2 adjustment applicants have seen a wide variety of decisions from USCIS – some have had their adjustment applications approved and others have been denied because the USCIS officer deciding their application refuses to apply (or is unaware of) the Matter of Le ruling. This is why you should try to file Form I-485 before turning 21 if possible.

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