Reuben S. Seguritan

Adjustment of Status for Children of Fiancé(e) Visa Holders

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The K-1 visa, also known as fiancée visa, allows a U.S. citizen to bring a foreign national fiancée into the United States. In order for the fiancée to be eligible to adjust status to permanent residence, they must marry within 90 days of the fiancée’s arrival in the U.S.

 

The fiancé(e)’s “minor child” may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. If the marriage does not occur within the 90-day period, the fiancé(e) and the derivative child must depart the U.S.

What event fixes the derivative child’s age in order to find out if he or she is eligible for a green card? And what age should it be – 18 or 21? Until recently, there have been conflicting views on this issue.

In a case decided by the Board of Immigration Appeals, it was held that as long as the K-2 derivative child entered the U.S. before reaching age 21, he or she is eligible to adjust status.

That case was about Hieu Trung Le, the son of a Vietnamese woman who entered the U.S. on a fiancé(e) visa. Hieu Trung entered the U.S. at the age of 19 as an alien derivative child. His mother married her U.S. citizen fiancé immediately after arriving in the U.S.

About two months later, the mother and son applied for adjustment of status. Although the mother was approved, Hieu Trung was not because, according to the USCIS, he could not qualify as a stepchild of the fiancé petitioner. Under the law, in order to be a “stepchild” the marriage of the parent must have occurred before the child reaches the age of 18.

Hieu Trung was placed in removal proceedings. By that time, he had reached 21 years of age. He renewed his adjustment application before the judge as a relief in immigration court but the judge denied it, but for a different reason.

The judge said that the respondent was eligible for adjustment when he applied to the USCIS because he was then under 21 years old. However, since he was already over 21 years old, he was denied adjustment by the judge.

On appeal, the BIA rejected the reasoning of both the USCIS and the immigration judge. It found that a K-2 derivative child’s eligibility to adjust status is determined at the time of admission to the U.S. with the K-2 visa, and as long as the bona fide marriage between the K-2 child’s parent and the U.S. citizen occurs within the 90-day period.

The court said that the term “minor child” for whom K-2 derivative status is available means a “child” or an unmarried person under 21 years of age.

It also held that a fiancé(e) derivative child need not qualify as a “stepchild” of the U.S. citizen petitioner as long as he was a “child” of the fiancé(e) parent, i.e. under 21 years and unmarried.

Since Hieu Trung was 19 years old when he was admitted to the U.S. on his K-2 visa, the BIA said that he appears to be eligible for adjustment of status and therefore sent the case back to the immigration judge for further action.

This decision is beneficial to the children of foreign fiancé(e)s who lost the opportunity to become permanent residents because they had reached their 18th birthday before K-1/K-2 visa processing, which sometimes takes a year or more, was completed.

This also means that their eligibility for a green card will not be affected by government delay. It is unfair for these children to lose the chance to become lawful permanent residents and be separated from their family in the U.S. simply because they “aged out” before the USCIS adjudicated their adjustment applications.

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

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