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 (the child of a K-1 who entered the United States to marry a U.S. citizen) turns 21 years old.

By , Attorney (Florida Coastal School of Law)

If you are a K-2 visa holder planning to take the next step in getting a U.S. green card, namely adjusting your status along with your K-1 parent in the United States, you might have heard or read that your eligibility for will end once you turn 21. But what does this mean? Can you protect yourself by applying for adjustment of status before you turn 21, or are you safe if you either entered the U.S. before turning 21 or obtained your K-2 visa before turning 21?

The wording of the relevant section of the law on this issue has confused not only would-be immigrants, but also U.S. immigration officers. (See I.N.A. § 1255, 8 U.S.C. § 1255.)

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.

B.I.A. Rule: K-2s Can Adjust Status If They Entered the U.S. Before Age 21

Under the B.I.A.'s 2011 decision in Matter of Le, K-2 visa holders can apply for adjustment of status after turning 21 on the condition that their last admission to the United States was before their 21st birthday.

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

So, for example: If you intend to arrive in the United States 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 United States one day before turning 21, you will remain eligible to apply for adjustment of status past your 21st birthday, and obtain a U.S. green card.

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 B.I.A.'s Decision 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 federal court has jurisdiction, unless the decision comes from the Supreme Court. However, courts so far have shown no inclination to deviate from the B.I.A.'s decision.

Another Way of Dealing With Expired K-2 Visa If Child Is Under 18 When K-1 Parents Marry

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 prepare and file a USCIS 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 United States on a K-2 visa 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.

Getting Legal Help

If you have more questions, or would like help analyzing your eligibility or preparing the paperwork, it could be well worth the cost to consult an experienced immigration attorney.

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