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 may have heard or read that your eligibility for the green card will end once you turn 21 years old. However, you may 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 entered the U.S. before turning 21 – or if you obtained your K-2 visa before turning 21.

The law on this issue is ambiguous, which has led to some confusion not only among potential K-2 adjustment of status applicants but also among immigration officers. In 2011, however, the Board of Immigration Appeals (BIA, the highest administrative authority on U.S. immigration, besides the Attorney General)  settled the issue – more or less.

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

This decision is inconsistent with the past position of the U.S. Citizenship and Immigration Services (USCIS) indicating that K-2 visa holders “must adjust prior to his/her 21st birthday.” But, in principle, the BIA’s view should prevail over USCIS interpretations.

If the BIA’s interpretation is challenged 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 has refused to deviate in any way from the BIA’s decision, and others are likely to follow suit.

So, as the rule stands, for example: If you intend to arrive in the U.S. 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).

The Alternative: When K-2 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 pendingshould 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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