By Susan Schreiber
In December 2000, Congress created a new nonimmigrant visa classification for the spouse of a U.S. citizen who is the beneficiary of a pending visa petition filed by the U.S. citizen spouse. This nonimmigrant K-3 status allows the beneficiary of the visa petition to come to the U.S. and adjust status here, instead of waiting for the petition to be approved and then consular processing abroad. Children of K-3 non-immigrants qualify for derivative K-4 status, even if they don’t qualify as stepchildren of the U.S. citizen K petitioner. Once in the U.S, however, a K nonimmigrant is subject to the restrictions of INA § 245(d), which provide that the K nonimmigrant may only adjust status based on the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the U.S. citizen who filed the K petition.
Two new BIA decisions issued in the second half of July address the eligibility of K-4 derivatives – the children of K-3 non-immigrants – to adjust status in the United States. Since children of K-3 non-immigrants may receive K-4 status even if they don’t qualify as stepchildren of the U.S. citizen K petitioner, may they nevertheless adjust status? If a K-4 child enters the United States and marries a U.S. citizen, may she then adjust status on that basis?
The answer to both of these questions is no. In Matter of Valenzuela, 25 I&N Dec 867 (BIA 2012), a K-4 derivative came to the United States with her K-3 mother, who subsequently adjusted status through her U.S. citizen spouse. Although the U.S. citizen spouse, stepfather to the K-4 derivative, did file an I-130 petition for her, the petition was denied when she failed to attend an interview. Some years later, the K-4 derivative applied to adjust status through her own marriage to a U.S. citizen, arguing that INA § 245(d) did not apply to her because her mother, the principal beneficiary, adjusted status in compliance with this section. The BIA disagreed, holding that an alien who enters the United States in K-4 status may only adjust based on an I-130 filed by the U.S citizen K visa petitioner.
In the second decision, Matter of Akram, 25 I&N Dec. 867 (BIA 2012), the BIA addressed the adjustment eligibility of a K-4 derivative who was over age 18 when her K-3 mother married the U.S. citizen K visa petitioner. Although the daughter of the K-3 spouse qualified for her derivative status because she was unmarried and under age 21, she did not qualify as the stepdaughter of the U.S. citizen petitioner because she was over age 18 when he married her mother. Consequently, the U.S. citizen petitioner could not file an approvable I-130 on her behalf. Citing INA § 245(d), the BIA noted that under this section of law, adjustment of status can only be based on the relationship to the U.S. petitioner. Since the K-4 derivative beneficiary could not establish a parent/child relationship with the U.S. citizen petitioner because of her age at the time of the marriage to her mother, she did not qualify to adjust status.
To read these decisions, or any other BIA decision, go to the EOIR website at www.justice.gov/eoir  and click on the link to the Virtual Law Library.