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K-2 and K-4 Adjustment of Status Process | K-1 and K-3 Visa Application Issues

| Jun 15, 2016 | Visa Issues

Earlier this month, the Third Circuit Court of Appeals issued an important precedential decision that affects the ability of individuals entering the US on K-4 visas to apply for adjustment of status. The case is Cen v. Attorney General and is binding on all cases that arise within the Third Circuit, which fortunately includes New Jersey. The Court held that the regulations pertaining to K-4 visa holders conflict with a common sense reading of the plain language of the Immigration and Nationality Act and therefore ruled it invalid. As a result, K-4 visa holders currently in the country may now be eligible to apply for their green cards here even if they were over the age of eighteen at the time of their parents’ marriage.

What is a K-4 visa?

A K-4 visa is available to unmarried children under the age of 21 of K-3 alien spouses. (A K-3 is a special visa that permits foreign spouses to enter the United States while the US citizen’s I-130 petition is processing.) Like the principal K-3 visa, a K-4 visa allows Customs and Border Protection to admit the individual for a period of two years; extensions may also be possible.

Regulations Treat K-2 visa holders differently than K-4 individuals

The Court compared the provisions pertaining to K-2s with those of K-4s, and found the disparity in treatment troubling. Under current case law and regulations, a child admitted as a K-2 (a dependent, unmarried child of a K-1 fiancé) need not necessarily have a US stepparent file an I-130 for him or her in order to adjust status. This is extremely important because in some circumstances, even though a child may qualify for the K-2 as being under 21, he or she may not be legally be considered a “stepchild” if the relationship is not established before the age of 18. In other words, if the marriage between the US citizen parent and foreign spouse takes place after the K-2 has already turned 18, the US Citizen cannot legally file an I-130 for the child as a parent. The regulations provide for a “gap-filler,” however, that remedies this problem by allowing K-2s to adjust under a different section of the law with different rules.

Unfortunately, this gap-filler was not formally carried over to K-4s. As a result, children under 21 may ironically enter the country as K-4s but not apply for adjustment of status if the marriage between their parent and the US Citizen stepparent occurred after they already turned 18. The Court found the result perverse and remarked “the government’s reading…would transform K-4 visas for older K-4 children into nothing more than tourist visas, giving their holders only a glimpse of what life with their families might have been like in America before being sent home because they are legally incapable of fulfilling [the relevant provision]. Such a reading defies common sense.”

As is evident, the immigration laws can be extraordinarily complex. Bringing a foreign fiancé or spouse over to the United States is truly an endeavor that requires foresight and a careful consideration of many factors, especially if dependent children of the foreign spouse are also concerned. For more information about how to file for fiancés, spouses, or children living abroad, please contact our office.  Please remember that the foregoing is not legal advice nor intended to create an attorney client relationship.  To receive legal advice, you must consult with an attorney.  

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