Aging Out and Adjustment of Status for K-2 Visa Holders

By Attorneys Robert Reeves and Jeremiah Johnson

Sometimes the Immigration Service applies an unreasonable interpretation of the law. Just last month, in Verovkin v. Still, a District Court in Northern California held just that. Specifically, the Immigration Service denied Mr. Verovkin’s, application for adjustment of status based on a K-2 visa (a child of a fiancée of a United States citizen) because he was twenty-one years of age on the date his application was decided. However, Mr. Verovkin filed his application for adjustment of status before he turned twenty-one. There was a difference in interpretations between the Immigration Service and Mr. Verovkin as to which date should serve as a reference point for determining his age for purposes of his eligibility for adjustment of status. As this article explains, the Court agreed with the Mr. Verovkin.

Although the case before the District Court involved a very specific set of facts, the reasoning behind the Court’s decision has broader applications. Mr. Verovkin entered the United States on a K-2 visa, a child of a fiancée of a United States citizen. He was twenty years old at the time. Subsequently, Mr. Verovkin’s mother married the United States citizen within ninety days of her entry. One month prior to turning twenty-one, Mr. Verovkin and his mother filed applications for adjustment of status (obtaining a green card.) Although his mother’s application was approved, the Service denied Mr. Verovkin’s application because he had already turned over the age of twenty-one.

The Immigration and Nationality Act (INA) provides that a child of a fiancée who accompanies or follows to join his parent may enter the United States with a K-2 visa. Furthermore, the Act defines a child as an unmarried person under the age of twenty-one years of age. Prior to the 1986 Immigration Marriage Fraud Amendments (IMFA) to the Act, a fiancée visa holder automatically obtained lawful permanent residence after her marriage to the United States citizen. Although IMFA provided statutory language for K-1 fiancées to apply for their green card (rather than obtaining status automatically), IMFA did not include language for the adjustment of status of K-2 visa holders. Nevertheless, the Attorney General promulgated federal regulations providing a basis for K-2 visa holders to adjust their status to lawful permanent resident, even though the Act did not include explicit language addressing the children of fiancées. As was the case before the IMFA, the Immigration Service recognizes that the adjustment of status of a K-2 visa holder derives from the parent’s newly acquired status as the spouse of a United States citizen. Yet in Mr. Verovkin’s case, the Immigration Service took the position that a K-2 visa holder must be under twenty-one at the time the adjustment of status is decided and therefore denied Mr. Verovkin’s application.

The District Court disagreed. Specifically, the District Court noted that because the Act no longer contains a provision explaining how a K-2 child is to obtain permanent resident status, Congress did not directly address this issue. As such, the Court properly looked at the age requirement for K-2 adjustment applicants, as it existed before Congress eliminated the procedure under IMFA. Prior to 1986, a K-2 visa holder was required to demonstrate that he was under twenty-one when he applied for a K-2 visa. Indeed, the current process for obtaining a K visa indicates that the Embassy will inquire as to eligibility for permanent residence prior to the applicant’s entry into the United States. More importantly, the Foreign Affairs Manuel instructs Consular officers that it is at the time of the application of the visa that the K-2 applicant must demonstrate that he or she is a “child” within the meaning of the Act – i.e. that he is under twenty-one.

In short, there is no statutory requirement that K-2 visa holders demonstrate that they are still under twenty-one when they apply for adjustment of status to permanent resident. By imposing such a requirement in Mr. Verovkin’s case, the Immigration Service applied an unreasonable interpretation of the Act.