If you entered the United States on a K-2 visa and ar enow over the age of 21, you may be wondering if you are eligible for a green card. The answer is "yes," but as discussed below, timing is important. The application for adjustment of status ("AOS") should be filed before the K-2 visa expires and the K-2 visa holder must enter the U.S. before they turn 21 years of age.
The leading case is Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010). In that case, the court determined the K-2 visa holder was eligible for AOS even though he turned 21 prior to the adjudication of his request for AOS. The K-series visas are generally called "Fiancée/Fiancé" visas as they are available for an out-of-country fiancée/fiancé -- the K-1 visa holders -- allowing entry into the United States for the K-1 visa holder to marry a United States citizen. The marriage must take place within 90 days of entry.
The K-1 visa allows the minor unmarried children of the fiancée/fiancé to enter the U.S. as K-2 visa holders. K-2 visas are only available to children of a non-U.S. citizen and are only available for those under 21 years of age who are unmarried. When the U.S. citizen petitions for the K-1 visa for the out-of-country fiancée/fiancé (Form I-129F), the names of any potential K-2 visa holders must be listed on the I-129F petition. The minor child or children must accompany the K-1 visa holder upon entry into the U.S. or arrive within one year.
After the marriage, eligible K-1 and K-2 visa holders may apply to adjust their status to that of lawful conditional permanent residents by filing Form I-485.
In the Carpio case, Wladimir Colmenares Carpio entered on a K-2 visa. His mother entered on a K-1 visa and the marriage to a United States citizen occurred within the required 90 days. Carpio was 20 years old at the time. After the marriage and over six months prior to his 21st birthday, Carpio applied for a conditional AOS. However, about three years later, the immigration services denied Carpio's application because he was no longer under 21 years of age. The Court of Appeals for the Tenth Circuit reversed the decision. The court held that the reasonable interpretation to determine eligibility for AOS was the age of the K-2 visa holder when he sought to enter the U.S., not when the application was adjudicated.
When Must the AOS Application be Filed?
Any K-2 visa holder must be very aware of timing with respect to filing an application for AOS. K-2 visas have time limits (usually 90 days). Although the law is somewhat unclear, it is important for a K-2 visa holder to file for AOS WITHIN those 90 days. Further, it is crucial for a K-2 visa holder to be in-country before they turn 21 years of age. See Regis v. Holder, Case No. 13-1988 (US 4th Cir. 2014). In that case, the K-2 visa holder turned 21 before entry into the U.S. As a result, the immigration services denied his application for AOS because he entered after he turned 21 and was, thus, no longer considered a "minor" when he entered. As such, he was not eligible for AOS. The court agreed. Further, for a K-2 visa holder to be eligible for AOS, the marriage must occur before the K-2 visa holder turns 21 years of age. So, as noted, timing is very important.
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For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.