The Board of Immigration Appeals, also called BIA, recently issued a favorable decision on June 23, 2011 regarding the “children” of fiancé visa holders who turn 21 years old after their entry into the U.S. as a K-2. Children that are under 21 years old can enter the U.S. with their mother, or sometimes their father, as a K-2 and the parent enters as a K-1, fiancé of a U.S. citizen. However, questions arise when that child turns 21 years old.
The BIA has provided a clear cut rule that states that if the child enters the U.S. while he or she was under 21 years of age, then that “child” may still adjust status by being petitioned by the U.S. citizen step-parent, even if he or she turns 21 years of age before the green card is issued.
This is a very good rule for K-2 visa holders, since for other step-child petitions, there is a general rule that the marriage between the biological parent and the step-parent should have occurred before the child was 18 years old. However, the BIA has changed this rule for applicants that enter with their parent under K-1 / K-2 visas.
In the case of Matter of Le, BIA 2011, the applicant entered the U.S. at the age of 19 along with his mom. His mom entered the U.S. as a K-1, fiancé of a U.S. citizen, and he entered as a derivative child, K-2. He entered as a minor child who was accompanying, or following to join, his mother. The mom of the applicant married the U.S. citizen when the child was already over the age of 18 years old. The USCIS Denied the applicant’s green card, stating that he no longer qualifies as a step-child, since he was not under 18 years when the marriage took place. He was placed in removal proceedings, and the Immigration Judge then ordered him removed, i.e. deported, from the U.S. because at that time he was also over the age of 21 years old and no longer met the definition of “child.”
The BIA disagreed with both USCIS and with the Immigration Judge, because they held that it is the age of the child at the time of entry into the U.S. that controls, and not the age of the applicant when the marriage of the mother and step-parent took place or age of the applicant at the time that his green card is adjudicated, that matters, if the applicant entered as a K-2 visa holder.
The BIA remanded the case back to the Immigration Judge with instructions for the Immigration judge to grant the applicant’s adjustment of status petition even though the applicant was already over the age of 21 years and even though the marriage of his biological mother to his step-father occurred after he had already turned 18 years old. These special provisions apply strictly to children that enter the U.S. as a k-2 visa holder, which is a child of a K-, fiancé of a U.S. citizen.