Under current law and regulations, a step-child is eligible to apply for an immigrant visa or permanent residency through adjustment if the biological parent of the child and the US Citizen step-parent got married before the child turns 18.

However, also under current law and regulations, the child of a fiancée visa holder (K-1) may be issued a K-2 visa if the child is below 21 at the time of admission into the United States.

The cased decided by the BIA involves a minor child of a K-1 fiancee visa holder and admitted into the United States on a K-2 visa.  The parents got married a week after the child’s admission.  The child’s application for adjustment of status was denied by the USCIS because the child turned 21 before his application for adjustment of status was decided.  The child was ordered deported by an Immigration Judge but an appeal was submitted to the BIA.

The BIA concluded that “to adjust status based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States”  Therefore, the child’s appeal was”ustained and the record…remanded to the Immigration Judge to allow the respondent to renew his application for adjustment of status pursuant to sections 245(a) and (d) of the Immigration and Nationality Act,8 U.S.C. §§ 1255(a) and (d) (2006).”

This is a ground-breaking decision and deserves a collective “Wow!” from immigrant advocates.

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