LE
25 I. & N. Dec. 541 (2011)
Rule of Law:
A derivative child of a nonimmigrant fiancé(e) visa holder (K-2 visa holder) is not ineligible for adjustment of status to a lawful permanent resident solely because they turned 21 after admission to the United States, provided they were an unmarried person under 21 years of age at the time of admission.
Facts:
- Hieu Trung Le was born on March 24, 1985, in Vietnam.
- On December 8, 2003, a United States citizen fiancé filed a Petition for Alien Fiancé(e) (Form I-129F) on behalf of Le's mother.
- Le's mother was issued a K-1 nonimmigrant fiancé(e) visa.
- Le, who was 19 years old at the time, was issued a K-2 nonimmigrant visa as the minor child accompanying or following to join his mother.
- On December 27, 2004, Le and his mother were admitted to the United States on their K visas, with Le still being 19 years old.
- On December 30, 2004, Le’s mother married her United States citizen fiancé.
- Approximately two months later, on February 24, 2005, both Le and his mother filed applications to adjust status with the U.S. Citizenship and Immigration Service (USCIS).
Procedural Posture:
- Respondent's application to adjust status was denied by the U.S. Citizenship and Immigration Service (USCIS), which found him ineligible because he was over 18 at the time of his mother’s marriage and thus could not qualify as a 'stepchild' of the fiancé petitioner.
- Respondent was subsequently placed in removal proceedings by the issuance of a Notice to Appear (Form I-862) on March 24, 2006.
- At a hearing before an Immigration Judge, respondent conceded removability and sought to renew his adjustment application.
- The Immigration Judge denied the respondent's adjustment application, disagreeing with the USCIS's 'stepchild' reasoning but concluding respondent was ineligible because he had since turned 21 and no longer met the definition of a 'child' under section 101(b)(1) of the Act at the time of adjudication.
- Respondent appealed the Immigration Judge’s February 25, 2008, decision to the Board of Immigration Appeals (BIA).
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Issue:
Is a derivative child of a nonimmigrant fiancé(e) visa holder (K-2 visa holder) ineligible for adjustment of status to lawful permanent resident if they turn 21 years of age after admission to the United States but before their adjustment application is adjudicated?
Opinions:
Majority - Greer, Board Member
No, a derivative child of a nonimmigrant fiancé(e) visa holder (K-2 visa holder) is not ineligible for adjustment of status if they turn 21 after admission to the United States but before their adjustment application is adjudicated. The Board concluded that K-2 visa holders establish visa eligibility and availability under section 245(a) of the Act at the time of admission to the United States, conditioned on the timely, bona fide marriage of the K-1 parent to the U.S. citizen petitioner. This aligns with the Board's precedent in Matter of Sesay, which established that the date of admission best marks visa eligibility and availability for K-visa holders, especially for derivative children who may follow the principal alien later. The Board further clarified that the undefined term 'minor child' in sections 101(a)(15)(K)(iii), 214(d), and 245(d) of the Act is synonymous with the term 'child' as defined in section 101(b)(1) of the Act, meaning an unmarried person under 21 years of age. This interpretation is supported by: 1) long-standing administrative and consular practice since the K visa category's creation in 1970, where implementing regulations consistently incorporated the section 101(b)(1) definition; 2) congressional reenactment of the term 'minor child' without definition in subsequent amendments (like the IMFA in 1986), suggesting awareness and adoption of the established administrative meaning; 3) the principle of agency deference to consistent, long-standing interpretations by the agency statutorily entrusted with administering the Immigration and Nationality Act; 4) a 2007 USCIS interoffice memorandum clarifying that K-2 aliens are not required to demonstrate a step-parent/step-child relationship and that 'minor child' means an unmarried person under 21 years of age; and 5) the Tenth Circuit Court of Appeals' interpretation in Carpio v. Holder, which similarly defined 'minor child' and indicated that age at the time an applicant 'seeks to enter' is controlling. Since the respondent was 19 years of age and unmarried at the time of his admission to the United States, he met the definition of a 'minor child' and satisfied the visa eligibility and availability requirements, subject to his mother's timely and bona fide marriage to the petitioner, which occurred. Therefore, the respondent established prima facie eligibility for adjustment of status.
Analysis:
This case clarifies critical ambiguities regarding K-2 visa holders' eligibility for adjustment of status, specifically when age is determined and what "minor child" means in this context. It reinforces the principle of agency deference to long-standing administrative interpretations where statutory language is ambiguous and Congress has not intervened. The decision ensures that derivative children are not unfairly penalized by administrative delays in adjudicating their adjustment applications, promoting a more consistent and predictable application of immigration law for K-visa families. It solidifies that the point of admission is the crucial juncture for K-2 age determination, rather than the date of adjudication.
