K-2 Visa Holders Do Not Age Out – Board of Immigration Appeals Rules

The Board of Immigration Appeals (BIA) has recently ruled that a K-2 visa holder who had been under 21 when he entered the United States could adjust status – even after turning 21.

In the case, the K-2 visa holder entered the United States with his mother when he was 19 years old.  Within a few weeks of entering, his mother married the U.S. citizen petitioner.  The K-1 mother and K-2 son then petitioned to adjust status to become permanent residents.  The K-1 visa holder was allowed to adjust status.  However, the K-2 visa holder was not allowed to adjust status and, when in front of an immigration judge, was not allowed to reapply for adjustment of status because he had already turned 21.  The judge determined that the K-2 visa holder had aged out because he turned 21 before he asked the judge to reapply.

On appeal, the BIA determined that both the USCIS and the immigration judge had misapplied the law.  The BIA determined that the K-2 visa holder was eligible to adjust status because he was under the age of 21 when he entered the United States, his mother had successfully married within the 90 days after she entered the United States, and that he was otherwise eligible.

If you are a k-2 visa holder and are seeking to adjust status (or have been previously denied an adjustment of status application), please contact a k-2 visa lawyer to discuss your options.

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Immigration Lawyer Chris Gafner provides immigration solutions to individuals and businesses. He represents clients in all areas of immigration law, including family-based immigration, employment-based immigration, and investor immigration matters.

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