10th Circuit Rules in Favor of K-2 for Adjustment of Status

January 13th, 2010

In Colmenares Carpio v. Holder, Jan. 12, 2010, the 10th Circuit ruled that a K-2 visa holder who timely applies for an adjustment of status under must be under twenty-one when he or she seeks to enter the United States, not when USCIS finally adjudicates his or her subsequent adjustment of status application.

A child under 21-years-old may apply for a K-2 visa as a dependent of his K-1 fiance parent.  Once the child arrives in the US, he or she must file for adjustment of status along with his or her parent within 90 days of entry on the K-2 visa and after the parent marries the US citizen petitioner.  If not, the child is subject to removal from the US.

The issue in the case at bar was whether the K-2 child must be under 21 at the time of entry into the US or at the time a final decision is made on the Form I-485 application for adjustment of status to legal permanent resident.  The court interpreted the immigration statutes governing K-2 adjustments liberally and found that the K-2 must be under 21 at the time of entry.