Integrity Legal

21st Nov 2009

We discuss the K1 visa on this blog frequently. A K2 visa is a derivative child visa designed for the child of a beneficiary of a K1 fiance visa. Under the government interpretation of US Immigration law. Children in the United States of America on a K2 visa who fail to adjust their status before the age of 21 “age out,” and must leave the country, apply for a new visa, and then return to the USA on an Immigrant visa. Unfortunately, this system can result in a delay of months or years for the would-be K2 visa beneficiary as Immigrant visa applications for the 21 year old step children of US Citizens can take as long as 3-5 years to be adjudicated. At the time of this writing, the case known as In Re Qiyu Zhang is pending in the US court system and could change this rule.

Advocates for United States Immigration reform await the outcome of this case with great anticipation as a favorable opinion would provide many new benefits to the children of American Immigrants. The American Immigration Lawyers Association (AILA) has filed a brief in support of ending the “age out” interpretation of the K visa statute. To quote the American Immigration Lawyer’s Association directly:

“[T]he only reasonable interpretation of the K visa provisions is that Congress intended that a K-2 visa beneficiary be able to adjust status within the U.S. even after turning 21. Any other interpretation produces absurd results. Congress explicitly provided that the child of a fiancé(e) K-1 visa holder was eligible for a K-2 visa and admission to the U.S. up until he or she turned 21. Under DHS’ interpretation, K-2 beneficiaries …who are admitted to the U.S. shortly before their 21st birthday, and who thus have insufficient time to complete the adjustment process, must immediately depart the U.S. upon turning 21. Congress certainly did not intend for some K-2 visa beneficiaries to be restricted to a visit to the U.S. – in some cases, for only a matter of days – the result that flows inevitably from DHS’s interpretation of the statute. Instead, as demonstrated below, the statute can and must be interpreted to allow all K-2 visa holders, no matter their age after admission, a viable path to adjust to lawful permanent residence status.”

This writer concurs with the opinion in the aforementioned brief as K2 beneficiaries should be allowed to adjust staus even after they have turned 21. Even though the K2 could technically be considered a dual intent travel document, the primary reason for its use is for children to travel to the US and adjust status. In this case, denying Immigration benefits due to age is too arbitrary and failure to adjust status because one reaches the age of 21 violates the spirit of the K visa statute.

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