The Tenth Circuit Court of Appeals ruled that a child of a fiancée of a United States Citizen or K-2 visa holder can adjust his or her status to Greencard holder or Lawful Permanent Resident (LPR) even though the child turns twenty-one while the application is pending.

The court’s ruling comes from the matter of Colmenares Carpio v. Holder which concluded that the applicant “must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application adjustment of status is finally adjudicated.”

This result contravenes several decisions of the United States Citizenship and Immigration Service or USCIS denying applications for adjustment of status based on a K-2 visa because the applicant was twenty-one years of age or older at the time of adjudication of the adjustment of status.

A fiancée of a US citizen or his or her child goes through four steps to become a Greencard holder or Lawful Permanent Resident.

Initially, the alien must apply for and obtain a K visa through an approved petition filed by his or her fiancée. Second, the fiancée must marry the US Citizen within a certain time period after entering the US

Third, after the marriage, the spouse adjusts his or her status to lawful permanent resident. Previously, the adjustment application was automatic but after a growing number of marriage fraud concerns, US Congress enacted the Immigration Marriage Fraud Amendments or IMFA. The statute deleted the automatic provision and required K visa holders to adjust their status pursuant to an INA § 245 application.

The applicant would be granted permanent residence only as a result of his or her marriage to the US Citizen who filed the original K visa petition. This means that the applicant cannot adjust his or her status based on a marriage who is not the original petitioner.

Lastly, the applicant can only adjust to conditional permanent resident status.

In the case Colmenares Carpio, in interpreting the Immigration and Nationality Act, which provides that a child of a fiancée who accompanies or follows to join his or her parent may enter the US with a K-2 visa or dependent visa and that the definition of a “child” as an unmarried person under twenty-one years old, the Federal courts ruled that it is the age at which the applicant “seeks to enter” the United States that is controlling and not his or her age at the time the adjustment of status application is adjudicated. Additionally, the plain language of the statute makes clear that the age of the “minor child” is the age before the marriage occurs and before the child enters the United States.

To recap, the K-2 visa holder must be under twenty-one at the time he or she “seeks to enter” the US when applying for adjustment of status.

Atty. Michael Templo is an attorney admitted to practice law in New York State and Federal Courts and is a partner at Templo & Templo http://www.templolaw.com with offices in New York, USA and Makati City, Philippines. Atty. Templo specializes in US Immigration matters. Atty. Mike Templo is also a host for ANC’s “Crossing Borders”.

The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional. For your comments and questions, Atty. Templo can be reached at info@templolaw.com or log on to www.templolaw.com.