On March 15, 2007; the USCIS issued an interoffice memorandum [8 C.F.R. § 214.2(k) (6)(ii)] regarding the adjustment of status for K-2 Aliens. This memorandum was “to remind officers that K-2 aliens seeking to adjust status are NOT required to demonstrate a step-parent/step-child relationship with the petitioner” which was and still is a common misapplication of the term ‘minor child’ as it appears in 245(d). The memorandum notes that “[t]he INA does not define the term ‘minor child’. Section 101(b)(1) defines the term ‘child’ as ‘an unmarried person under twenty-one years of age’”. Thus, K-2 aliens need not be under the age of 18 at the time of the K-1 alien’s and US Citizen’s marriage. K-2 aliens are eligible to adjust status once the K-1 alien is married to the petitioning US Citizen, but must apply separately.
The memorandum cites 8 CFR 214.2(k)(6)(ii) as its basis, which reads:
“(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act”.
The USCIS memorandum concludes that,
“Officers should NOTlimit the adjustment of status of K-2 aliens to persons under the age of 18 based on the term “minor child” as it appears in 245(d). The INA does not define the term “minor child.” Section 101(b)(1) defines the term “child” as “an unmarried person under twenty-one years of age.” Consequently, officers should allow for the adjustment of status of K-2 aliens under the age of 21, provided the requirements for adjustment of status in 245 of the INA are satisfied”.
Conversely, K-4 aliens ARE required to show a step-parent/step-child relationship with the petitioner. The K-4 alien’s application to adjust status is based on the US Citizen’s I-130 petition. Thus, the marriage between the K-3 parent and US Citizen spouse must have taken place before the K-4 alien’s 18th birthday. However, K-4 aliens are protected from aging-out by the CSPA. Thus, their age ‘freezes’ at the time the I-130 is filed.
Summary
In conclusion, K-2 aliens are eligible for AOS at the same time as their K-1 parent; provided that they adjust prior to their 21st birthday. K-2 aliens are NOT protected by the CSPA, since an I-130 was not filed on their behalf. Additionally, K-2 aliens do NOT need to establish a step-parent/step-child relationship with the petitioner. They are eligible for K-2 status and then to AOS as the minor child of the K-1 parent. However, K-4 aliens MUST demonstrate a step-parent/step-child relationship with the US Citizen Petitioner; since the application process requires the filing of form I-130. Additionally, K-4 aliens are protected by the CSPA; and thus may apply for AOS upon the approval of their I-130 petition, even after the age of 21 in certain circumstances. Officers who deny AOS to K-2 aliens based on the claim that a step-parent/step-child relationship was not established between the K-2 alien& the US Citizen Petitioner are incorrect in their application of the law. These cases should be properly adjudicated as discussed in the USCIS memorandum 8 C.F.R. § 214.2(k) (6)(ii).
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