by Moses Apsan, Esq.
On June 23, 2011 the Board of Immigration Appeal (BIA) in the Matter of Le clarified the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age 21, is eligible for adjustment of status even after turning age 21.
In this case, the child and his mother were both native and citizen of Vietnam. When the mother became engaged to a United States citizen, he filed a Petition for Alien Fiancé(e) with the U.S. Citizenship and Immigration Service (“USCIS”) on her behalf on December 8, 2003. The Fiancé petition was approved, and the respondent’s mother was issued a K-1 nonimmigrant fiancée visa. The child was 19 years old and was issued a K-2 nonimmigrant visa as the minor child who was accompanying, or following to join, his mother, a K-1 visa holder. On December 27, 2004, they were admitted to the United States on their K visas.
On December 30, 2004, a few days following their admission, the mother married her United States citizen fiancé and in about 2 months, both filed applications to adjust status with the USCIS. Although the respondent’s mother was granted adjustment, the child’s application was denied. Shortly there after the child was placed in removal (deportation) proceedings. At the removal hearing her lawyer sought to renew the adjustment application. The Immigration Judge denied the adjustment application and concluded that under section 245(d) of the Act, “the respondent had been eligible to adjust his status to that of a conditional permanent resident when his application was before the USCIS, because he was still under 21 years old. Nevertheless, the Immigration Judge determined that the respondent could no longer adjust because he had since turned 21 and could not qualify as a “child,” as that term is defined in section 101(b)(1) of the Act.” The decision was appealed
On appeal, the Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. By holding so, it threw out the Department of Homeland Security’s position that a K-2 visa holder must under the age of 21 at the time the adjustment of status application is adjudicated.
The Board’s decision follows in line with the position advocated by the American Immigration Council and the American Immigration Lawyers Association in the amicus briefs submitted to the Board in approximately six other cases where the child turned 21 after being admitted to the United States.
Under this ruling, many other children in a similar position will be able to become lawful permanent residents, as was Congress’ original intent.