By Charles Wheeler
The Seventh Circuit Court of Appeals has held that in order to be eligible for adjustment of status, a child who entered the United States on a K-4 visa need only establish that he or she is a minor child of a K-3 parent who married the petitioning U.S. citizen. Akram v. Holder, No. A096 769 035 (July 9, 2013). The court struck down the regulation at 8 CFR § 245.1(i) that requires the adjustment applicant to qualify as a “child” of the petitioning U.S. citizen parent. Therefore, children who were over 18 years of age when the marriage took place, and thus do not qualify as stepchildren, may nevertheless adjust status without the need for the U.S. citizen to file an I-130. This regulation had prevented children over 18 from qualifying as “stepchildren” under the definition of “child,” and thus required them to leave the United States and immigrate based on a separate petition filed by their LPR parent.
The facts in the case were not complicated. A U.S. citizen married a woman in Pakistan. At the time the woman had an 18-year-old daughter, Akram. The U.S. citizen filed an I-130 petition for the spouse, but was unable to file an I-130 for the stepchild because she was not under 18 at the time of the marriage, which is a statutory requirement in the definition of “child.” He also filed a petition to have the spouse enter as a K-3 nonimmigrant and the stepchild as a K-4. To qualify for a K-4, the child need only establish that she was the minor unmarried child (under 21) of the K-3. The spouse adjusted status, but the child was prevented from adjusting, since no I-130 had been filed due to inability to establish a “stepchild” relationship with the U.S. citizen. The regulationsrequire a K-4 seeking adjustment of status to have filed an I-130 petition showing that he or she is the “child of the U.S. citizen who originally filed the petition for that alien’s K-4 status.” Failing that, current policy and procedures require Akram to leave the United States after her I-94 expired and wait abroad until her LPR mother could petition for her.
The court analyzed the statute, § 1101(a)(15)(K)(iii), and decided that its intention was for K-4s to enter the United States and later adjust status. It found nothing limiting K-4s to adjust based on their relationship to the K-4 petitioner. That restriction exists only in the regulation, 8 CFR § 245.1(i), which the court found frustrated the statutory goal. The court stated: “Nothing in the statute suggests that Congress intended for K-4s like Akram to come to the United States as mere temporary visitors.” Therefore, the court found that the regulation was invalid in its requirement that the stepchild’s adjustment be based on a relationship to the U.S. citizen petitioner.
In this case the K-3 mother adjusted status and filed an I-130 petition for the son, which was still pending at the time the court case was decided. The court went further and addressed the issue about whether Akram could adjust based on that petition, assuming it was approved and the priority date was current. It concluded that she could, and thus also struck down that part of the regulation that required that adjustment be based only on a petition filed by the U.S. citizen who filed the K-4 petition. According to the court, it “is the K-3’s marriage, not the K-4’s relationship to the petitioning citizen, that matters.” This presumes, of course, that Akram would have satisfied other eligibility requirements for adjustment of status as a preference category beneficiary, which include always maintaining lawful immigration status.
To summarize, in the Seventh Circuit, that portion of 8 CFR § 245.1(i) that provides that a K-4 cannot adjust status “in any way other than as a … child of the U.S. citizen who originally filed the petition for that alien’s …K-4 status” has been struck down. It remains to be seen if the USCIS will agree to apply this holding nationwide or limit it to the states within that federal circuit (Illinois, Indiana, and Wisconsin).