Timing Issues When K-2 Child of Fiance Visa Holder Will Turn 21 Before Adjusting Status

Dealing with the rule that eligibility for the green card will end once a K-2 visa holder turns 21 years old.

If you are a K-2 visa holder thinking about adjusting your status with your K-1 parent in the U.S., you might have heard or read that your eligibility for the next step, a U.S. green card, will end once you turn 21. However, you might not be sure whether this means that you need to apply for adjustment of status before you turn 21, or instead that you may apply for adjustment after turning 21 if you either entered the U.S. before turning 21 or you obtained your K-2 visa before turning 21.

The wording of the law on this issue confusing to not only potential K-2 adjustment of status applicants but also immigration officers. In 2011, however, the Board of Immigration Appeals (B.I.A., the highest administrative authority on U.S. immigration, besides the Attorney General) settled the issue, more or less.

The BIA Rule: K-2s Can Adjust Status if Entered the U.S. Before Age 21

Under the BIA's 2011 decision in Matter of Le, K-2 visa holders can apply for adjustment of status after turning 21 if their last admission to the U.S. was before their 21st birthday.

Although this decision is inconsistent with the past position of the U.S. Citizenship and Immigration Services (USCIS), which said that K-2 visa holders must adjust prior to their 21st birthday, the BIA's view has nevertheless since prevailed.

So, for example: If you intend to arrive in the U.S. with a K-2 visa one day after turning 21, you will not be eligible for adjustment of status. But, if you arrive in the U.S. one day before turning 21, you will remain eligible to apply for adjustment of status past your 21st birthday.

Nonetheless, K-2 visa holders should make sure they apply for adjustment of status (with or after their K-1 visa holding parent) within the 90-day validity period of their K-2 visa. This is because, even though K-1 visa holders can still easily apply for adjustment of status after the expiration of their I-94 (assuming they are doing so based on their marriage to the K visa sponsor), this option seems more limited for K-2 visa holders (see below).

Might the BIA Be Overruled Some Day?

In the future, a U.S. court could conceivably choose to overrule Matter of Le, either by limiting adjustment eligibility to K-2 visa holders under 21 at the time of their adjustment application, or even by expanding eligibility to K-2 visa holders over 21 at the time of their entry into the U.S. (The applicability of such judicial interpretation would be limited to the states where the court has jurisdiction, unless the decision comes from the Supreme Court.)

However, at least one court (the Fourth Circuit) has refused to deviate from the BIA's decision, and others are likely to follow suit. (See the 2014 case of Regis v. Holder.)

Alternative Strategy When K-2 Visa Holder Is Under 18 at Time of K-1 Parent's Marriage

If your K-2 visa (or I-94) expires, you might still be able to apply for adjustment of status as the stepchild of a U.S. citizen, assuming you were under 18 at the time of your K-1 parent's U.S. marriage to your K visa sponsor.

You will need your sponsor to file a Form I-130, in addition to the adjustment of status forms and documents you must submit to USCIS.

You must still be under 21 at the time you begin this process (although turning 21 once your application is pending should not cause you to lose your eligibility as a "child"). So, for example: If you arrived in the U.S. as a K-2 at age 17, and your K-1 father married his U.S. citizen wife before you turned 18, then she should be able to sponsor you for the green card if you apply before your 21st birthday.

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