By Robert L. Reeves & Nancy E. Miller
The U.S. District Courts had said that K-2s over 21 could adjust to permanent resident status. The U.S. Circuit Court had agreed. Various immigration judges (IJ) had also granted adjustment to K-2s who had turned 21. But that had not stopped the United States Citizenship and Immigration Services (USCIS) from denying the applications for adjustment or the Department of Homeland Security (DHS) from appealing IJ grants for K-2 derivative beneficiaries who have turned 21. On June 23, 2011, the Board of Immigration Appeals issued Matter of Hiew Trung LE a precedent (binding) decision that definitively said that K-2 derivatives do not age-out upon turning 21 prior to the adjudication of their application for adjustment.
Le was born on March 24, 1985 in Vietnam. His mother, also a native and citizen of Vietnam, became engaged to a United States citizen who filed for a K-1 visa on her behalf on December 8, 2003. The visa was granted and she entered the United States on the K-1. Le was issued a K-2 visa and entered the United States on the K-2 on December 27, 2004. At that time, he was 19 years old. Within one week of admission, his mother married her United States citizen petitioner fiancé. In February 24, 2005, Le and his mother filed applications with USCIS to adjust their status to that of lawful permanent resident. Le’s mother’s application was granted but his was denied.
In its denial, USCIS stated that he was not eligible for adjustment because he could not qualify as a “step-child” under the Immigration and Nationality Act (INA) because his mother had married the petitioner after he turned 18. He was subsequently referred to Immigration Court where he renewed his application for adjustment. The IJ disagreed with USCIS and held that Le had been eligible to adjust while his application was pending with USCIS because he was then under 21. However, he held that Le was no longer eligible because he had turned 21 years old and was, therefore, no longer a “child” under the INA.
The Board dismissed the argument that the derivative needed to be under 18 at the time the marriage took place by referring to the legal guidance from Interoffice Memorandum from Michael L. Aytes, USCIS Assoc. Dir., Domestic Operations, to DHS officials (Mar. 15, 2007). The memorandum stated that K-2 aliens seeking to adjust status are NOT required to demonstrate a step-parent /step-child relationship with the petitioner. A K-2 alien who is over 18 years of age may adjust status provided they satisfy the requirements for adjustment of status under INA Section 245. Therefore, the fact that Le (or any other K-2) was over 18 at the time of the marriage is irrelevant.
With regard to whether the K-2 alien aged-out upon turning 21, the Board looked to it’s own recently issued precedent decision, Matter of Sesay and the USCA 10th Circuit precedent decision Carpio v. Holder. Carpio, which was issued in 2010, held that the controlling age for the K-2 alien was the age at which the applicants “seeks to enter” the United States. The court left open whether the controlling date was the date that the USC filed the petition for the K-1 or whether it was the date that the visa application was filed with the consular officer. In Sesay, the Board held that the alien fiancé parent establishes visa eligibility and availability in satisfaction of Section 245(a) of the INA at the time of admission to the United States with the K-1 nonimmigrant visa, provided s/he enters into a bona fide marriage with the fiancé petitioner within 90 days.
Consistent with Sesay, the Board held that a K-2 derivative child of a finance visa holder must establish visa eligibility and availability in satisfaction of Section 245(a) at the time of his or her admission to the United States. In this case, Le established eligibility because he was 19 years old when he was admitted to the United States and his mother timely entered into a bona fide marriage with the petitioner. As such, he was still eligible to adjust his status despite having turned 21 prior to the adjudication of his application for adjustment.
Many K-2 derivatives were denied adjustment because a government official incorrectly interpreted the law and wrongly denied their application. The adult children painfully concluded that they would have to wait 10-15 years or more in order to obtain legal status in the United States. Thanks to the Le decision that is not the case. However, the correction is not automatic. Motions may have to be filed to reopen or reconsider court or USCIS denials. There are specific requirements for these motions. Any K-2 beneficiary who was denied adjustment on the basis of having aged-out should seek the assistance of a knowledgeable and experienced immigration attorney immediately.