Integrity Legal

As we have previously discussed on this blog, the K1 visa (the category that is used to denote the US fiance visa) has a derivative counterpart that allows for the children of a foreign fiance or fiancee to travel to the United States with their parent. From a legal standpoint, there is nothing particularly interesting about this, but it does become interesting when holders of K2 Visas apply for adjustment of status in order to obtain United States Lawful Permanent Residence also referred to as a “Green Card.” Under the current rules, there is some question as to whether or not a K2 visa holder is allowed to adjust status after they turn 21 years of age. In a recent article posted on the Immigration Slip Opinion Blog, the author noted that issues surrounding K2 adjustment have yet to be fully addressed, but upcoming cases before the Board of Immigration Appeals (BIA) may clarify this vexing issue:

“‘Aging out’ issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21. In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent. After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday. In numerous cases, children enter with only a few days to spare before turning 21. Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable. The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment. A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong. We have asked the BIA to schedule oral argument on this issue and to decide these cases together.”

This author has yet to be convinced of Congress’s original intent, but this issue is interesting and it will be fascinating to see how this issue plays out in the Immigration Courts. A favorable decision could lead to major benefits for children of the Thai fiancees of American Citizens.

For general information about US Immigration from Thailand please see: US Visa Thailand.

Tags: Adjustment of Status, Adjustment of Status K1 Visa, Adjustment of Status K2 Visa, Fiance Visa, Fiance Visa Thailand, Fiance Visas, K1 Visa, K1 Visa Thailand, K2 Visa, k2 visa thailand, US Fiance Visa, US Visa Thailand
Posted in Adjustment of Status, Fiance Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | 25 Comments »