K-2 Visa in Thailand: Minor Child Aging Out

by | December 11, 2014 | US Fiancee Visa, US Immigration

Under the K-1 Fiancé Visa, the fiancé of a United States Citizen can enter the United States to marry the U.S. citizen within 90 days. K-2 visas can be issued to minor children of the K-1 visa holder within one year of the issuance of the K-1 visa. The minor children of the K-1 visa holder can accompany the K-1 visa holder to the United States or follow to join them at a later date.

Following the marriage of the K-1 visa holder to a U.S. citizen, the K-1 visa holder and her “minor children” (K-2 visa holders) can apply to adjust status to a U.S. conditional permanent resident. The term “minor child” for K-2 visas is not defined by the statues but has been construed from court cases as a person who is unmarried and under the age of 21.

There was a recent case involving the issue of when a “minor child” ages out prior to their entry into the United States. The question in the case was when the K-2 visa holder’s age stopped accruing – at the time when they applied for the K-2 visa, at the time when they received the K-2 visa, at the time when they entered the U.S. on the K-2 visa, or when the person applied for adjustment of status.

To apply for a K-2 visa in Thailand, see this page.

The recent case decided by the U.S. Court of Appeals for the Fourth Circuit is titled Regis v. Holder (13-1988) addressed this issue. In this case, Mr. Regis received his K-2 visa when he was still under the age of 21 but he entered the United States when he was over the age of 21 years old.

After his mother married the United States citizen, Mr. Regis filed a petition to adjust status to a U.S. permanent resident. The U.S. Citizenship and Immigration Services denied Mr. Regis’ application because he turned 21 years old before he entered the United States and therefore was not a qualifying “minor child.” An immigration judge agreed with the USCIS and the Board of Immigration Appeals affirmed the immigration judge’s decision.

Mr. Regis argues that the K-2 visa holder’s eligibility to adjust status to a Permanent Resident should not be determined by his age when he entered the United States but when he received his K-2 visa. The U.S. Court of Appeals affirmed the decision of the Board of Immigration Appeals. They said that the Board of Immigration Appeals has wide deference in deciding cases based on the statutory provisions.

If you have any questions on the K-1 or K-2 process, please contact our office at 1-877-252-8831.

 

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Category: US Fiancee Visa, US Immigration

Robert Virasin

About the Author (Author Profile)

Mr. Robert R. Virasin is a graduate of the University of California, Los Angeles with a Bachelor Degree in Political Science, Mr. Virasin completed his Juris Doctorate at the University of Houston and a Masters of Laws (Business) from Chulalongkorn University, Bangkok. Mr. Virasin is a member of the State Bar of Texas and is a licensed U.S. attorney with over 15 years of legal experience. Robert is a regular contributor and author of a number of immigration related articles.

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