Adjustment Status for K-2 VISA Holders: Deciphering the ‘Aging Out’ Problem

The Immigration and Nationality Act, or INA, indicates that the child of a fiancée who accompanies or follows to join his parent may enter the United States with a K-2 visa. The child is defined as an unmarried person under the age of 21.  Prior to the 1986 Immigration Marriage Fraud Amendments to the act, or IMFA, a fiancée visa holder automatically obtained legal permanent residence upon his or her marriage to a U.S. citizen.   After the IMFA was promulgated, the K-1 fiancées were given the opportunity to apply for their green cards rather than obtaining that status automatically prior to 1986.       

The issue that was not explicitly addressed by the IMFA was the issue as to whether K-2 visa holders (the children under 21 of K-1 fiancées) were able to apply for adjustment of status.   To alleviate this problem, the attorney general assisted in the enactment of federal regulations providing a basis for K-2 visa holders to adjust their status to lawful permanent residents. The former INS established that the adjustment of status of a K-2 visa holder derives from the parent’s newly acquired status as the spouse of a U.S. citizen. The issue that arose before the Immigration Service was determining whether the K-2 visa holder must have been under 21 at the time his or her adjustment of status application was decided or simply under 21 at the time the adjustment of status application was filed.

The answer to this question is extremely critical.  If the Immigration Service determines that the K-2 visa holder must be under 21 at the time his or her adjustment of status application is decided, then many K-2 visa holders could conceivably “age out.” This means that many K-2 visa holders will miss their window of opportunity to become lawful permanent residents because they will likely be over the age of 21 by the time their adjustment of status applications are fully adjudicated, especially given the backlog of such applications before the USCIS.  On the other hand, if the Immigration Service determines that the K-2 visa holder must merely be under 21 at the time his or her adjustment of status application is filed, then there will no longer be an “age out” problem. That is, so long as the adjustment of status application on behalf of the K-2 visa holder was timely filed when he or she was under the age of 21, then he or she can become a lawful permanent resident even if the adjustment of status application is fully adjudicated when the applicant is over the age of 21.

Fortunately, there is a district court case in Northern California, Verokin v. Still (2007), that held that the K-2 visa holder must merely have been 21 at the time his adjustment of status application was filed in order to be eligible to apply for adjustment of status.  In 2008 and 2009, there have been other district courts across the United States that have followed suit, thereby correcting the problems created by the local Immigration Processing Centers that erroneously denied the adjustment of status applications of K-2 visa holders because those applicants were over 21 at the time their applications were decided.  Now, it is abundantly clear:  So long as the K-2 visa holder was under 21 at the time his adjustment of status application was filed with the USCIS (and assuming all other eligibility requirements under the INA are met), then the K-2 visa holder should be granted the opportunity to become a lawful permanent resident.  This is wonderful news for many parents who previously believed that their K-2 children were in a terrible predicament.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

Comments

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[Myra]

my email: [email protected]
I will appreciate any help with this matter..

[Myra]

Here you can read more about the LEE case:

http://www.americanimmigrationcouncil.org/sites/default/files/docs/Matter-of-Le-Statement-6-29-2011.pdf

[Myra]

As today what is the latest on the k2 visa holders that had age out? My husband aged out on 2004, because he turned 21, 5 months after entering U.S and we don't know if we should try to open his case again to get a new decision, his mom(now divorce) will soon be able to apply for citizenship could she fill I-485 for him? should he try to open his case again? what steps should he take now? we found out about the BIA Lee case on june 29 2011 this changes anything for all the k-2 visa holders that age out?
thanks
myra

[ויזה לארה"ב]

K2 visas are hard to approve as it became very similar to green card fraud

[cris]

does all k2 visa age out had been resolve?

[Joseph]

Denis:

It is my experience and understanding that if your marriage to the K-1 Petitioner took place within 90 of your arrival in K-1 status and your child's K-2 status, then no I-130 is required. If the marriage took place more than 90 days after arrival, then I-130 is required.

Good luck.

[Denisa]

please someone can help me i have my baby of 2 years old and he has the k2 visa now im trying to send the adjust of status for him but im not sure if i need to send I 485 with I 130 or just I 485 form.. please if someone know about that help me my mail is [email protected]

[id scanner]

It's very important to regulate the immigration laws and regulations regarding the identity certificate to keep the country safer. Getting an ID Card and be an American is important and desirable, but should only qualified people get it.

[earn money from home]

This certainly is great news for parents of K-2 children. The American Justice System works, and it's so cool to see it in action! Congratulations :-)

[k-2 visa]

I just see this case in 10th Circuit, Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2009), the court held:
"In light of the plain language of 8 U.S.C. §§ 1255(d) and 1101(a)(15)(K), the decisions of other courts, and considerations of fairness and common sense, we hold that an individual who applies for an adjustment of status under § 1255(d) must be under twenty-one years of age on the date that he or she "seeks to enter the United States." See § 1101(a)(15)(K). The date that the individual "seeks to enter the United States" may be plausibly read as either (1) the date that the United States citizen files a petition for K-1 and K-2 visas with the Secretary of Homeland Security under 8 U.S.C. § 1184(d)(1), or (2) the date that the K-1 and K-2 visa applications are filed with the consular officer in the country of origin. See id.; 22 C.F.R. § 41.81."

[financial spread betting]

This is an age old problem and it doesn't look like we are any closer to solve.

[dental health center]

Grushin is a decision of the Immigration Tribunal. It was a case of the District Court

[Green Card Visa]

It is really unfair to the children when their status is changed or otherwise threatened due to the inconsistencies of government. If they did something wrong, or even made an innocent mistake, then I can see this being fair. But, when legislators are just being wishy-washy, how can they be expected to have a chance.

[maz]

and the parent have gone back to their country and left the kids with their step mom.

[maz]

I have a question regarding this issue. Can K2 visas adjust their status through marriage, if their parents divorced the US Citizen spouse before they became lawful permanent residence?

[Theodore]

In addition to the K-2 Visa's, I would suggest researching the eb5 visa program . They are relatively similar and both offer many great features for immigrants trying to gain acceptance into the US. Check it out Ron, hopefully it will be of some help to your situation. The link is below.

http://www.cmbeb5visa.com

[ron]

Hello RCM I wrote you twice and you did not reply.Please i'm about to get crazy because I dont know what to really do.I contacted an attorney he said there is nothing he can do for me.Because my dad should married before i turned 21.Somewhere i red it doesn't matter the age you are if you came in usa on a k2 visa They shoul considered you like child from the i 130 petition.Please help me I can not eat.

[RCM]

David,
USCIS is continuing to misapply the law defying the Verovkin Decision. Their conduct is completely inexplicable at defies at least 8 immigration court rulings that have agreed with Verovkin. USCIS claims there have been court decisions supporting the age-out myth but when pressed, cannot name even one.
Grushin is an Immigration Court decision. It was not a District Court case. I have been sent printed copies of several other favorable Immigration Court rulings.

You can contact me at libertyandjustice at rocketmail dot com. I'm not an attorney. I'm Verovkin's step-father and will help educate your attorney in this narrow and often misunderstood area of immigration law.

[David Nelson]

Mr Tonogbanua,
Apparently this "wonderful news" you mention has not made it to Milwaukee. We filed AOS in December, my stepson turned 21 in April, interviewed in June, and was denied due to age out in August. Any suggestions?
I would also like to know what other district court cases have been documented since Verovkin. I have read Grushin, but that is all I can find. Also, I have read that the USCIS recently appealed their own decision and won, in order to boilerplate their position.
David

[jeff]

good afternoon.
I was reading this information,And I want to make sure.Because I am in the same situation.I live in GA.I came in USA with my dad and my little sister.My dad married 6 days afetr my birthday.one month and 5 days after we got in the US.So we fille verything.they sent us our EAC.And we did our ssn and our driver license.My little sister is 14.Today we had the interview.They told me they re going to think about it.Because my dad maried 5 days after my birthday and now I am not under 21.That means I cant be considered like k2 anymore.They said they will write me to let me know if there is a possibility for me to stay ortherwise they will deport me.But I think it's unfair.Can you help me pls because I don't know what to

[Rob C. Tonogbanua, Esq.]

RCM, thank you once again for your thoughtful insight on this very important issue. I truly appreciate your expertise and feedback. If you apply a literal interpretation of the language in Verovkin, you are correct in that it does not appear that the the I-485 for a K-2 Visa Holder needs to be submitted to a USCIS Service Center before he/she turns 21 years of age, only that the K-2 Visa should have been issued before the individual turned 21 years of age. However, if the parents of K-2 children wish to avoid this mess altogether, the I-485, in my opinion, should be filed with the USCIS long before the K-2 child reaches the age of 21 (preferrably well before they turn 21 especially given the backlog of such applications with local USCIS Service Centers). The problem that many of these K-2 children are encountering is that although their I-485 was filed before they turned 21 years of age, because of the backlog they were over 21 years of age by the time their I-485 was adjudicated. As a result, their applications were subsequently denied. There may be different interpretations on what Verovkin holds or how it should be applied by various attorneys and judges in different cases. I think the bottom line is that children who have been issued K-2 visas do not "age out" and are therefore entitled to the right to apply for adjustment of status and ultimately become U.S. citizens if that is their ultimate goal. I'm certain you and I agree on that. This is, in my opinion, the right result, and the opportunity to become lawful permanent residents should not arbitrarily be taken away from these K-2 children.

[RCM]

To quote Verovkin, "In short, there is no statutory requirement that K-2 visa holders demonstrate that they are still under twenty-one when they apply for permanent residence. By imposing such a requirement in
Plaintiff’s case, USCIS applied an unreasonable interpretation of
the INA. Such a requirement is at odds with the fact that a child can receive a K-2 visa up until the day of his or her twenty-first birthday. Following Defendant’s interpretation of the age requirement, a K-2 visa issued under these circumstances would be
worthless the next day. Congress could not have intended such an absurd result. Accordingly, the Court holds that, once an alien has demonstrated that he or she is under twenty-one when he or she receives a K-2 visa, he or she remains eligible for later adjustment of status, even if he or she has reached the age of twenty-one in the interim."

[RCM]

What is significant is that there is no requirement to file for adjustment before age 21 - a fact you apparently missed. You also wrote that there have been district court cases since Verovkin. It would be great if you would name them.