John and his mother were citizens of the Philippines when his mother met his stepfather, a U.S. citizen. The marriage between his mother and stepfather subsequently took place in the Philippines. John was nineteen at the time of the marriage. After the marriage occurred, John’s stepfather returned to the United States and wanted to move his new family with him. After filing the appropriate documentation, both John and his mother obtained non-immigrant visas that allowed them to join the stepfather and live in the United States as non-immigrants while they awaited their approvals of their green cards. While in the United States, John’s mother obtained her green card, but unfortunately John was unable to do so because he didn’t qualify as the child of his U.S. citizen stepparent under his non-immigrant visa. Thus, he was sent back to the Philippines to apply for a green card abroad. Suzie, also a citizen of the Philippines, was nineteen years old at the time of the marriage between her mother, a Philippian citizen, and stepfather—also a U.S. citizen. When her mother and stepfather met in the Philippines, they decided they would move the family to the United States. Once Suzie and her mother obtained their non-immigrant visas, they reunited with the stepfather and the marriage subsequently occurred in the United States. Suzie and her mother then filed applications for green cards and both applications were approved. Once they received their green cards, Suzie and her mother were happily able to start a new life in the United States with the stepfather. Why was John sent abroad to await the approval of his green card while Suzie was permitted to stay with her parents within the United States? John and Suzie were children of foreign parents who married a U.S. citizen stepparent, were unmarried, and were between the ages of 18–21 at the time of their parents’ marriage. They both entered the United States using non-immigrant visas. This situation presents a quirk in immigration law that remains overlooked despite recent judicial rulings in the Third and Seventh Circuits that aim to prevent this outcome.[i]
John was able to enter the United States with his foreign parent using a non-immigrant K-4 visa.[ii] The Regulation at issue precludes a K-4 stepchild, between 18–21 years old, from qualifying as the minor stepchild of the U.S. stepparent and barred John from applying for an immigrant visa within the United States.[iii] Because his non-immigrant status expired while he is awaiting the approval of his application to adjust his status, he was essentially left with “no recourse but to leave [his] family behind in the United States and return to [his] home country to apply for a permanent visa from abroad”.[iv] Suzie, on the other hand, was the child of a foreign spouse-to-be of a U.S. citizen whose parent married the U.S. citizen within the United States. She entered the United States using a non-immigrant K-2 visa. Although she was nineteen at the time of her parents’ marriage she was protected under a gap-filling regulation that allowed her to adjust her status based on her parents’ marriage and did not require her to qualify as the stepchild of the U.S. citizen.[v] Thus, a minor stepchild must be under the age of eighteen at the time of the marriage, if it took place abroad, to avoid the risk of being sent back to his natural parent’s homeland.
The available case law regarding this issue considers the application of the Regulation in this manner as an abuse of governmental agency’s discretion.[vi] In a recent 2016 case, the court recognized in its holding that current immigration laws “offer older K-4 children nothing more than a legal dead end”.[vii] In that case, Cen argued that because section 1255(d) authorized her “status adjustment ‘as a result of the marriage of’ the K-3 parent and the U.S. stepparent, all K-4 children [eighteen or over but] under twenty-one [were] unambiguously eligible to adjust status on the basis of the marriage alone rather than the parent-child relationship with their parents”.[viii] Although the Attorney General has discretion in deciding who will ultimately be approved to adjust his status within the United States, that discretion does not reach as far as completely negating Congress’ purpose in implementing the existing statute.[ix] The court held that the Regulation in the Cen case was invalid because it was manifestly contrary to what Congress’ purpose was for enacting section 1255(a) and amending the LIFE Act.[x]
The misapplication of the Regulation calls for an urgent change by the Attorney General to help fix the paradox that older K-4 children between ages 1821 face and only causes more friction in the immigration system as it is contrary to the LIFE Act’s goals of reuniting families.[xi] It is imperative to balance the powers granted to the government and the intent of Congress in enacting law.[xii] Absent this balance, government agencies will continue to overstep their authority contrary to Congress’ will—merely due to misinterpretations of ambiguous statutory language.[xiii]. It is unclear why the same administrative fix made for K-2 children was not made for K-4 children. One possible reason is that the negative outcome experienced by K-4 children may have simply faded from the government’s attention over the years since Congress amended the LIFE Act in 2000.[xiv] Even so, the Regulation has posed several consequences for K-4 children trying to adjust their status within the United States after their parents have married abroad.[xv] To advance Congress’ goals, statutory requirements in immigration law should be implemented with more flexibility. The Attorney General must at least recognize the impact the misapplication of an invalid regulation can have on family members, who would otherwise be lawfully admitted to the United States, and take the necessary steps to effectuate a just solution.
[i] 8 C.F.R. § 245.1(i) (2016) [hereinafter “the Regulation”] (“An alien admitted to the U.S. as a [K-4] alien may not adjust to that of permanent resident status in any way other than as a . . . child of the U.S. citizen who originally filed the petition for that alien [parent’s] K-3 status.”); Cen v. Attorney General 825 F.3d 177, 198 (3d Cir. 2016). The Regulation adversely impacts older K-4 children who are 18–21 years old at the time of their parents’ marriage by precluding this age group from applying for adjustment while present within the United States. Cen, 825 F.3d at 198.
[ii] See K-3/K-4 Non-immigrant Visas, USCIS, https://www.uscis.gov/family/family-us-citizens/k3-k4-visa/k-3k-4-non-immigrant-visas (last updated Apr. 1, 2011). A child is eligible for a K-4 visa if he is unmarried, under twenty-one years old, and is the child of a qualified K-3 foreign parent. Id.
[iii] See e.g., Akram v. Holder, 721 F.3d 853, 856 (7th Cir. 2013) (explaining that “although Akram was her foreign mother’s minor child for K-visa purposes, she was not [her stepfather’s] minor child for I-130 purposes”).
[iv] Cen v. Attorney General, 825 F.3d 177, 185 (3d Cir. 2016).; see also 8 C.F.R. § 214.2(k)(10)(i) (2016). The K-4 visa holder over the age of eighteen at the time of the marriage is unable to apply for an extension of stay when the K-visa has expired after the two-year period, or if he turns twenty-one while his application to adjust status is pending, because he must show that either an I-130 petition, an immigrant visa based on an I-130 petition, or an application to adjust status based on an I-130 petition is pending approval. Cen, 825 F.3d at 185. However, the K-4 visa holder between the ages of 18–21 is barred from having an I-130 petition filed on his behalf because he does not qualify as the child of the U.S. stepparent. Id. Thus, the K-4 child is unable to successfully apply for an extension of stay. Id.
[v] See 8 C.F.R. § 214.2(k)(6)(ii) (2016) (“gap-filling” regulation for K-2 children).
[vi] Cen, 825 F.3d at 184.
[vii] Id. at 198 (emphasis added).
[viii] Id. at 187; see also 8 U.S.C. § 1255(d) (2016).
[ix] Id. at 190.
[xi] Cen, 825 F.3d at 195.
[W]hile Congress was presumptively aware that the definition of child when it passed the LIFE Act, it was presumptively aware that the [USCIS] had long interpreted minor child to mean an individual under age twenty-one and already interpreted [section] 1255(d), through the gap-filler regulation, to relieve K-2 children of the strictures of [section] 1101(b)(1) for purposes of adjusting status. Thus, had Congress intended to deviate from the gap-filler’s existing interpretation [regarding K-4 children], we would expect such deviation to have been explicit.
[xii] See id. at 197.
[xiii] See generally Akram v. Holder, 721 F.3d 853 (7th Cir. 2013) (discussing how K-4 children re left with no recourse but to return abroad due to the government’s impermissible construction of the statute).
[xv] See Cen, 825 F.3d at 179 (explaining that “these aliens may spend significant time separated from their loved ones while they wait in their home countries for the appropriate visa approval”).