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Practice Note
 
BIA Sets Landmark Precedent for Children of Fiancé(e)’s (K-2 Visa Holders)

On June 23rd, 2011 the Board of Immigration Appeals (BIA) set a favorable precedent promoting family unity in its decision in Matter of Hieu Trung LE. The BIA’s ruling favorably resolves the issue of whether the child of a fiancé(e) of a U.S. citizen who legally entered the U.S. under the age of 21 is eligible for adjustment of status even after turning age 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. In doing so, it rejected the Department of Homeland Security’s position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.

The BIA’s decision in this case has resolved certain ambiguities regarding K-2 visa holders.  Besides establishing that visa eligibility and availability should be established by the date of admission, the BIA’s decision gives a stricter definition to the term “minor child” (unmarried person under 21 years of age).  Additionally, the BIA found that a fiancé(e) derivative child does not need to qualify as the “stepchild” of the fiancé(e) petitioner but only needs to show that he or she is the child of the alien fiancé(e) parent whom he or she is accompanying or following to join.

Although the same basic requirements will apply to K-2 applications, the decision will ultimately make the process less confusing as long as the alien fiancé(e) and the petitioner enter into a bona fide marriage within 3 months of initial entry.

 


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