Derivative of K-1 Fiancé(e) Visa Holder Found Eligible For Green Card

By: Michael Bhotiwihok

Adjustment of status for K-1 and K-2 visa holders can be complex even under the best of circumstances.  Things become even more challenging when there is a divorce and the derivative child turns 21-years-old.  However, as one happy Reeves Immigration Law Group client can say, good lawyering can still lead to a green card.  

Reeves Immigration Law Group is proud to announce that we were recently able to assist our client in obtaining permanent resident status (“green card”) after extensive litigation in immigration court on a rare and complex area of immigration law. Our client, who we will refer to as Angela to protect her privacy, can now enjoy all the benefits of permanent resident status, including the ability to work, petition family members, and freely travel back home to the Philippines to visit family and friends.

Angela entered the U.S. many years ago with a K-2 visa.  Her mother had been granted a K-1 visa, which is granted to foreign nationals to enter the United States for the purpose of marrying their U.S. citizen fiancé(e) within 90 days of their entry.  Angela was able to obtain a K-2 visa as her mother’s derivative since she unmarried and under 21-years-old.

Angela thought everything was going to be easy after she entered the U.S.  She thought her mother would marry her U.S. citizen fiancée and that shortly thereafter her application to become a conditional permanent resident would be approved by the U.S. Citizenship and Immigration Service.  Everything was initially going to plan – Angela’s mother timely married her fiancée and they both submitted their applications for green cards.  Sadly though, Angela would not be receiving her green card anytime soon.

Unfortunately, Angela’s mother’s marriage did not work out.  Before Angela and her mother were interviewed on their applications for adjustment of status, Angela’s mother separated from her U.S. citizen spouse.  She even divorced her husband and left the U.S. to return to the Philippines.  Angela, however, decided to remain in the U.S. so that she could help care for her ailing grandmother.

Angela’s application for adjustment of status was denied after she failed to appear for her interview.  The Department of Homeland Security then referred her case to Immigration Court with the issuance of a Notice To Appear.  Angela was now facing deportation from the U.S.

Angela decided to retain the services of Reeves Immigration Law Group.  Her case was assigned to Attorney Michael Bhotiwihok, who is one of the firm’s Senior Associate Attorneys.  Attorney Bhotiwihok explained to Angela that there were obstacles in her case, but he also devised a strategy to overcome those obstacles so that Angela could still get her green card despite her mother’s divorce.

Attorney Bhotiwihok successfully argued to the Immigration Judge that Angela was still eligible for her green card based on two different cases from the Board of Immigration Appeals.  First, Attorney Bhotiwihok said she was eligible according to Matter of Sesay, a case that allows a K-1 visa holder to adjust their status so long as they entered into a bona fide marriage within 90 days of entry to the United States . . . even if the marriage to the U.S. citizen petitioner has since been terminated.

Second, Attorney Bhotiwihok also had to establish that Angela remained eligible for her green card even though she had already turned 21-years-old and was therefore no longer a minor.  For this issue, Attorney Bhotiwihok successfully argued that Matter of Le held that a K-2 derivative child of a K-1 fiancé(e) visa holder is not ineligible for adjustment of status simply by virtue of having turned 21-years-old after admission to the United States on a K-2 visa.

The significance of Angela’s case cannot be understated. This is because even after the Board of Immigration Appeals has issued decisions favoring K-1 and K-2 visa holders in certain situations, the U.S. Citizenship and Immigration Services has inconsistently applied the law and incorrectly denied their applications for green cards.  Many people are then left to fight for their green cards in deportation proceedings. However, the successful resolution of Angela’s case, even though she was over 21-years-old and her mother never received her green card, should provide a shining light for K-1 and K-2 visa holders placed into deportation proceedings before an Immigration Judge.

Subscribe to Newsletter