A recent Board of Immigration Appeals (BIA) decision from June may help many people whose adjustment of status applications were wrongly denied on the basis that they had “aged out.” The decision is Matter of Le, 25 I & N Dec. 541 (BIA 2011), and it specifically pertains to the eligibility of someone who enters on a K-2 to adjust status here in the US even after turning 21. Those who are potentially affected should definitely take a look at the case. The Board ruled that Mr. Le, who entered the US on a K-2 visa as a derivative of his mom’s K-1 visa at the age of 19, did not “age out” as a “child” for purposes of adjustment even though he was over the age of 21. In fact, visa eligibility and availability for a K-2 to adjust are determined by looking at the age of the individual at the time of admission. The Board essentially clarified that if K-2 visa holder enters the United States before the age of 21, and other conditions are established (ie., his/her parent marries the petitioner within 90 days, and he/she is otherwise eligible), that individual is not disqualified from filing an adjustment of status as a derivative even if he/she may be over 21 at the time of the adjustment of status application.
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