25 I&N Dec. 541 (BIA 2011)
Matter of Hieu Trung LE, Respondent
In this case, the Board of Immigration Appeals addressed issues pertaining to the child of a nonimmigrant fiancée visa holder who obtained admission as a derivative of his mother’s
fiancée status. The respondent, a K-2 visa holder, sought to adjust his status to that of a lawful permanent resident, but he had turned 21 prior to the adjudication of his application for adjustment of status by the Immigration Judge. The BIA concluded that to adjust status based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States.
The respondent was born on March 24, 1985, in Vietnam. His mother, also a native and citizen of Vietnam, became engaged to a United States citizen who filed a Petition for Alien Fiancé(e) (Form I-129F) with the U.S. Citizenship and Immigration Service (“USCIS”) on her behalf on December 8, 2003. The petition was approved, and the respondent’s mother was issued a K-1 nonimmigrant fiancée visa pursuant to section 101(a)(15)(K)(i) of theAct, 8 U.S.C. § 1101(a)(15)(K)(i) (2000). The respondent, who was then 19 years old, was issued a K-2 nonimmigrant visa as the minor child who was accompanying, or following to join, his mother, a K-1 visa holder, pursuant to section 101(a)(15)(K)(iii) of the Act. On December 27, 2004, the respondent and his mother were admitted to the United States on their K visas, when the respondent was still 19 years old.
On December 30, 2004, within a week of her admission, the respondent’s mother married her United States citizen fiancé. Approximately 2 months later, on February 24, 2005, both the respondent and his mother filedapplications to adjust status with the USCIS. The respondent’s mother was granted adjustment, but the respondent’s application was denied. The USCIS found that the respondent could not qualify as the “stepchild” of the fiancé petitioner within the meaning of section 101(b)(1)(B) of the Act because he had already reached the age of 18 at the time of his mother’s marriage. He was therefore determined to be ineligible to adjust his status.
The respondent was subsequently placed in removal proceedings by the issuance of a Notice to Appear (Form I-862) on March 24, 2006. At a hearing before the Immigration Judge, the respondent conceded removability and sought to renew his adjustment application. The Immigration Judge denied therespondent’s adjustment application, but he disagreed with the reason given by the USCIS for its denial. The Immigration Judge concluded that under section 245(d) of the Act, the respondent had been eligible to adjust his status to that of a conditional permanent resident when his application was before
the USCIS, because he was still under 21 years old. Nevertheless, the Immigration Judge determined that the respondent could no longer adjust because he had since turned 21 and could not qualify as a “child,” as that term is defined in section 101(b)(1) of the Act.
After reviewing the matter, the BIA found that a K-2 derivative child of a fiancé(e) visa holder must establish visa eligibility and availability in satisfaction of section 245(a) at the time of his or her admission to the United States. See generally Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). As it concluded in Matter of Sesay, visa eligibility and availability are best established by the date of admission.
Matter of Hieu Trung LE, Respondent
