Adjustment Of Status For A Child That Entered On A K-2 Visa, Do They Age Out After 21?

A child of a non-immigrant fiancé(e) visa holder is not ineligible for Adjustment of Status simply because they have turned 21 after admission to the United States on a K-2 non-immigrant visa.

To adjust status based on a K-2 visa, an alien child must establish that he or she was under 21 years of age at the time of admission to the United States.

It’s important to understand how the USCIS determines if your fiancé(e)’s child is automatically considered a stepchild or whether they have aged out.

Can A K-2 Visa Holder Adjust Status If They Have Turned 21?

21st-birthday-adjust-statusAs long as a child with a K-2 visa entered the U.S. before turning 21 and the K-1 visa parent married the I-129F petitioner within 90 days of entry, then they are eligible for Adjustment of Status.

If the USCIS determines that the K-2 visa holder must be under 21 at the time his or her adjustment of status application is decided, then many K-2 visa holders could conceivably “age out.”

This means that many K-2 visa holders will miss their window of opportunity to become lawful permanent residents because they will likely be over the age of 21 by the time their adjustment of status applications are fully adjudicated, especially given the backlog of such applications before the USCIS.

On the other hand, if the USCIS determines that the K-2 visa holder must merely be under 21 at the time his or her adjustment of status application is filed, then there will no longer be an “age out” problem.

So long as the adjustment of status application on behalf of the K-2 visa holder was timely filed when he or she was under the age of 21, then he or she can become a lawful permanent resident even if the adjustment of status application is fully adjudicated when the applicant is over the age of 21.

What Are The Eligibility Requirements For A Stepchild Of The U.S. Citizen?

The age and marital status of a child are important factors in the immigration process. For immigration purposes, a “child” is defined as being unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter”.
  • Children (unmarried and under 21)
  • Unmarried sons and daughters (21 or over) – Your son or daughter’s child(ren) may be included on this petition.
  • Married sons and daughters (any age) – Your son or daughter’s spouse and/or child(ren) may be included on this petition.
  • A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18

What Are Other Requirements And Rights Of A K-2 Visa Holder?

mother-son-adjust-statusA K-2 visa holder’s status is entirely dependent on the K-1’s status. If the K-1 visa holder doesn’t marry the US citizen petitioner then neither the K-1 nor the K-2 can adjust status.

If the K-1’s AOS is denied then the K-2’s AOS is automatically denied. K-2’s are conditional residents for the first two years, just like K-1’s. K-2’s need to apply for removal of conditions just like K-1’s. If a K-1’s removal of conditions is denied then the K-2’s is denied, as well.

There are some exceptions to the above. A K-2 can’t apply for US citizenship after three years, while a K-1 who remains married to the US citizen can. A K-2 has to wait five years, just like most other legal permanent resident’s.

Once a K-2 successfully removes conditions then their status is no longer dependent on the K-1 parent’s status.



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