On the basis of the marriage of the biological parent and the stepparent, a child may be considered a stepchild and may be avail of certain immigration benefits. Either the stepchild may be classified as a derivative beneficiary or a direct beneficiary depending on the petitioner and the age of the stepchild. In certain cases, the stepchild may also avail of the non-immigrant K4 visa status. But there are limits on the process for adjustment for K4 visa holders. These limitations are addressed in the case below.
Dear Atty. Lou,
I entered the United States with my mother on a K4 visa when I was 19 years old. My mother married a US citizen after I turned 18 years old. When her US citizen husband filed a petition I-130 for her, a nonimmigrant visa K3 was also filed. The consular officer issued my Mom a K3 visa and I was also issued a K4 visa as derivative child of my mother.
My mom was able to get her green card through my stepfather. I was not issued a green card through my stepfather because of my age. Hence, my mother filed a second preference petition for me as a minor child of a green card holder parent. The petition was approved but I was not able to adjust my status because USCIS denied my application for adjustment. It was stated in the denial that as K4, I could only apply to for my green card through the petition of my stepfather. However, I cannot be considered as a stepchild because my stepfather and my mom married after I turned 18 years old. What should I do? I do not want to go back to the Philippines to get my visa.
Anthony
Dear Anthony,
You are correct in saying that the step-parent relationship is formed only before the child reaches 18 years old. Once the step-parent relationship is formed, a petition I-130 may be filed by the step-parent on behalf of the stepchild. The petition will generally be approved if the marriage of the stepfather and the biological parent is real and entered into in good faith.
Generally, K4 visas are issued to minor children of K3 visa holders. Upon arrival in the United States of the K3 and the K4s, the US citizen spouse or step-parent usually has 1-130 petitions for the K3 and K4 (below 18 years old) visa holders. When the I-130s are approved, both the K3 and the K4 visa holders are able to adjust and get their green cards. The K3 and the K4s cannot adjust status except on the basis of the marriage to the same US citizen petitioner.
In your particular case Anthony, you were past 18 years old when your biological mother and your step-father were married. This means, that for immigration purposes, you have not formed the legal relationship to allow you receive the benefits of a “child”. You may be wondering why you were issued a visa to enter the United States if there is no step-parent/child relationship. The issuance of your K4 visa was on the basis of the fact that you are a minor child(below 21 years old) of the principal beneficiary of the K3 visa petition. It was not issued to you on the basis of the petition by the U.S. citizen step-parent.
Since your mother is now a green card holder, she rightfully filed a petition for you under the second preference or the F2A visa category. Considering that the priority dates under the F2A are current for the month of August, you may file for an adjustment of status. Unfortunately, your adjustment was denied because K4 may only adjust through petitions filed by the original petitioner, which in your case is your step-father. What you can do is file a request of a reconsideration of your adjustment denial.
In a similar case recently decided in the Seventh Circuit Court of Appeals Akram v. Holder (No.12-3008-July 9, 2013), the court held that the restriction to adjust for K4 visa holders finds no support in existing law. Under 8 U.S.C. §1255(d) the “ K3’s marriage”, not the “K4’s relationship” to the petitioning citizen is what matters. According to the decision in the case of Akram v. Holder, Congress did not intend for a relationship with a citizen stepparent to be the only way for a K4 visa to adjust status. You may seek a reconsideration of the denial of your adjustment application based on the ruling in the case of Akram v. Holder.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
