BIA Holds K-2 Derivative May Adjust Status After 21

By: The Chander Law Firm

In Matter of Le, 25 I. & N. Dec. 541 (BIA June 23, 2011), the Board of Immigration Appeals (BIA) held that a K-2 derivative child of a nonimmigrant fiancé(e) visa (K-1) holder may be eligible for adjustment of status where the K-1 holder married within 90 days of entering the United States and the K-2 derivative child entered the United States before the age of 21.

Applying the rationale use in Matter of Sesay, 25 I&N Dec. 731 (BIA 2011), the BIA held that K-1 and K-2 status holders satisfy the immigrant visa requirement of INA § 245(a) upon admission to the United States and entry into a bona fide marriage within the 90 day period after entry.  The BIA also affirmed the position that the K-2 holder need not be under 18 at the time of the marriage or need to show a step-child step parent relationship.  Lastly, the BIA held that INA § 245(d) was ambiguous as to whether the K-2 holder must be under 21 years of age to adjust status.  The BIA adopted the position of the 10^th circuit in Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010).

There are several significant points to this case.  First, in cases where an alien beneficiary intending to marry a U.S. citizen has a child over 18, it may be beneficiary to seek a fiancé(e) visa as opposed to marrying and seeking an immigrant visa because the derivative child may be able to adjust status after the age of 21.  Second, in some circumstances adjustment of status applications for K-2 derivatives may be filed after the age of 21.

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