March 22, 2011

IJ Ruled Aged-Out K-2 May Proceed with Adjustment of Status

In a recent case, an Immigration Judge in Charlotte, NC found that the alien benefiicary, who entered the U.S. on a K-2 visa and turned 21 before filing for adjustment of status based on her mother’s marriage to the petitioning U.S. citizen, is nonetheless eligible for adjustment.

The alien beneficiary was admitted to the United States on September 10,2008, when she was twenty years old, as a K-2 visa holder following her mother, the K-l visa holder. Her mother married the U.S. citizen petitioner on November 25,2008, within 90 days of entry in accordance with section 216 of the Act. The alien beneficiary turned twenty-one years old on December 1,2008. On January 21,2009, she tiled an 1-485 application for adjustment of status
with the United States Citizenship and Immigration Service ("USCIS"). On September 15, 2009, the USCIS issued a decision denying Respondent's application for permanent resident status because she filed her 1-485 after she tumed twenty-one years old and therefore no longer qualified as a "child" under the Act.

The issue before the Court was whether the alien beneficiary could adjust her status pursuant to section 245(a) based on her mother's marriage to the petitioning United States citizen spouse, when she was admitted to the United States on a K-2 visa and turned twenty-one years old before she tiled her application for adjustment of status. Court found that Respondent is eligible to seek adjustment of status based on Carpio v. Holder, a Tenth Circuit case. In that case, the alien was under twenty-one years old when he submitted his 1-485 application and turned twenty-one before it was adjudicated. The Tenth Circuit Court ruled: " [T]here is no indication in the statutory language that the alien beneficiary became ineligible for an adjustment of status merely because he turned twenty-one (and twenty-two and twenty-three) while waiting for an adjudication.") The Tenth Circuit cited an unreported federal district court decision in which the court held that
"there is no statutory requirement that K-2 visa holders demonstrate that they are still under twenty-one when they apply for permanent residence" because "[a]t the time he was issued a K2 visa, [the alien] had already been determined presumptively eligible for permanent residence, conditioned only on the conclusion of his mother's marriage and completion of the two-year probationary period."

The Tenth Circuit concluded that the language in the Act relating to K visas focused on the age of the individual at the time he or she "seeks to enter the United States," and could be plausibly read as requiring the individual to qualify as a "child" on either (1) the date the United States citizen filed the visa petition; or (2) the date the visa applications were filed with the consular office.

The Immigration Court ruled: "Given ambiguities and gaps in the statute and regulations regarding K-2 visa holders, the Court finds the Tenth Circuit Court of Appeals' decision to be persuasive. As outlined above, in Carpio v. Holder...held that an alien applying for adjustment of status based on his mother's marriage to a United States citizen was required to be under age twenty-one when he sought to enter the United States, rather than at the time his application for adjustment of status (l-485) was adjudicated. ... language in the Act relating to K visas focused on the age ofthe individual at the time he or she "seeks to enter the United States," and could be plausibly read as requiring the individual to qualify as a "child" on either (l) the date the United States citizen filed the visa petition; or (2) the date the visa applications were filed with the consular office."

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