Ernie, a U.S. citizen is engaged to Liwayway, a widow he met while he was on vacation in the Philippines. Liwayway has a 19 year old daughter, Daria. She told Ernie that she could not bear to be separated from her only daughter and would be devastated if she would be left behind. Ernie would like to bring both of them at the same time to the United States. However, he knew that by the time he marries Liwayway, Daria no longer will qualify as his stepdaughter because she is already 19 years old. Ernie is now in a quandary as to how he could fulfill the wishes of his dear fiancée.
Ernie is correct, if he marries Liwayway whether in the Philippines or when she arrives in the United States, he will not be able to file an immigrant relative petition for Daria. To qualify as a stepchild, the marriage establishing the stepparent-stepchild relationship must occur prior to the 18th birthday of the stepchild.
But all is not lost, what Ernie needs to do is to immediately file a fiancée petition for Liwayway. Once approved, Liwayway will be issued a K-1 nonimmigrant fiancée visa. Daria, provided, she is below 21 years old will be issued a K-2 nonimmigrant visa as the minor child of Liwayway.
Section 101(a)(15)(K)(iii) of the INA provides for issuance of a nonimmigrant visa to the “minor child” who is accompanying or following to join the fiancé(e) parent. In Matter of Le, 25 I&N Dec. 541 (BIA 2011), the Court in defining “minor child” adopted the definition of “child” in Section 101(b)(1) of the Act which is an unmarried person under 21 years of age. Thus, Liwayway enters the United States on a K-1 nonimmigrant visa and Daria will enter and seek admission to the United States not as the stepchild of Ernie, but as Liwayway’s derivative minor child.
Upon arrival in the United States, Liwayway and Ernie are required to marry within ninety (90) days in order for Liwayway and Daria to be eligible to file adjustment of status applications.
8 CFR 214.2(k)(6)(ii) provides:
Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act.
Pursuant to this provision, Daria as a minor child of a K-1 beneficiary will be eligible to adjust to that of a permanent resident. Pursuant to the holding in Matter of Le, her eligibility to adjust status is determined at the time of her admission to the United States. In short, provided Daria enters and is admitted to the United States prior to her turning 21, she will be able to adjust status as the derivative minor child of a K-1 fiancée parent.
Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com.