A Cry for Change: The Fallacy of the American Dream for K-4 Children
Adrienne Rodriguez
John and his mother were citizens of the
Philippines when his mother met his stepfather, a U.S. citizen. The
marriage between his mother and stepfather subsequently took place in the
Philippines. John was nineteen at the time of the marriage. After
the marriage occurred, John’s stepfather returned to the United States and
wanted to move his new family with him. After filing the appropriate
documentation, both John and his mother obtained non-immigrant visas that
allowed them to join the stepfather and live in the United States as
non-immigrants while they awaited their approvals of their green cards.
While in the United States, John’s mother obtained her green card, but
unfortunately John was unable to do so because he didn’t qualify as the child of
his U.S. citizen stepparent under his non-immigrant visa. Thus, he was sent
back to the Philippines to apply for a green card abroad. Suzie, also a
citizen of the Philippines, was nineteen years old at the time of the marriage
between her mother, a Philippian citizen, and stepfather—also a U.S.
citizen. When her mother and stepfather met in the Philippines, they
decided they would move the family to the United States. Once Suzie and
her mother obtained their non-immigrant visas, they reunited with the
stepfather and the marriage subsequently occurred in the United States.
Suzie and her mother then filed applications for green cards and both
applications were approved. Once they received their green cards, Suzie
and her mother were happily able to start a new life in the United States with
the stepfather. Why was John sent abroad to await the approval of his
green card while Suzie was permitted to stay with her parents within the United
States? John and Suzie were children of foreign parents who married a
U.S. citizen stepparent, were unmarried, and were between the ages of 18–21 at
the time of their parents’ marriage. They both entered the United States
using non-immigrant visas. This situation presents a quirk in immigration
law that remains overlooked despite recent judicial rulings in the Third and
Seventh Circuits that aim to prevent this outcome.[i]
John was able to enter the United States with
his foreign parent using a non-immigrant K-4 visa.[ii] The Regulation at
issue precludes a K-4 stepchild, between 18–21 years old, from qualifying as
the minor stepchild of the U.S. stepparent and barred John
from applying for an immigrant visa within the United States.[iii]
Because his non-immigrant status expired while he is awaiting the approval of
his application to adjust his status, he was essentially left with “no recourse
but to leave [his] family behind in the United States and return to [his] home
country to apply for a permanent visa from abroad”.[iv] Suzie, on
the other hand, was the child of a foreign spouse-to-be of a U.S. citizen whose
parent married the U.S. citizen within the United
States. She entered the United States using a non-immigrant K-2
visa. Although she was nineteen at the time of her parents’ marriage she
was protected under a gap-filling regulation that allowed her to adjust her
status based on her parents’ marriage and did not require her
to qualify as the stepchild of the U.S. citizen.[v]
Thus, a minor stepchild must be under the age of eighteen at
the time of the marriage, if it took place abroad, to avoid the risk of being
sent back to his natural parent’s homeland.
The available case law regarding this issue
considers the application of the Regulation in this manner as an abuse of
governmental agency’s discretion.[vi] In a recent 2016 case, the
court recognized in its holding that current immigration laws “offer older K-4
children nothing more than a legal dead end”.[vii] In that
case, Cen argued that because section 1255(d) authorized her “status adjustment
‘as a result of the marriage of’ the K-3 parent and the U.S. stepparent, all
K-4 children [eighteen or over but] under twenty-one [were] unambiguously
eligible to adjust status on the basis of the marriage alone rather than the
parent-child relationship with their parents”.[viii] Although the
Attorney General has discretion in deciding who will ultimately be approved to
adjust his status within the United States, that discretion does not reach as
far as completely negating Congress’ purpose in implementing the existing
statute.[ix] The court held that the Regulation in the Cen case
was invalid because it was manifestly contrary to what
Congress’ purpose was for enacting section 1255(a) and amending the LIFE
Act.[x]
The misapplication of the Regulation calls for
an urgent change by the Attorney General to help fix the paradox that older K-4
children between ages 1821 face and only causes more friction in the
immigration system as it is contrary to the LIFE Act’s goals of reuniting
families.[xi] It is imperative to balance the powers granted to the
government and the intent of Congress in enacting law.[xii] Absent
this balance, government agencies will continue to overstep their authority
contrary to Congress’ will—merely due to misinterpretations of ambiguous statutory
language.[xiii]. It is unclear why the same administrative fix made for
K-2 children was not made for K-4 children. One possible reason is that
the negative outcome experienced by K-4 children may have simply faded from the
government’s attention over the years since Congress amended the LIFE Act in
2000.[xiv] Even so, the Regulation has posed several consequences for K-4
children trying to adjust their status within the United
States after their parents have married abroad.[xv] To advance Congress’
goals, statutory requirements in immigration law should be implemented with
more flexibility. The Attorney General must at least recognize the impact
the misapplication of an invalid regulation can have on family members, who
would otherwise be lawfully admitted to the United States, and take the
necessary steps to effectuate a just solution.
[i]
8 C.F.R. § 245.1(i) (2016) [hereinafter “the Regulation”] (“An alien
admitted to the U.S. as a [K-4] alien may not adjust to that of permanent
resident status in any way other than as a . . . child of the U.S. citizen who
originally filed the petition for that alien [parent’s] K-3 status.”); Cen v.
Attorney General 825 F.3d 177, 198 (3d Cir. 2016). The Regulation
adversely impacts older K-4 children who are 18–21 years old at the time of
their parents’ marriage by precluding this age group from applying for
adjustment while present within the United States. Cen,
825 F.3d at 198.
[ii] See
K-3/K-4 Non-immigrant Visas, USCIS,
https://www.uscis.gov/family/family-us-citizens/k3-k4-visa/k-3k-4-non-immigrant-visas
(last updated Apr. 1, 2011). A child is eligible for a K-4 visa if he is
unmarried, under twenty-one years old, and is the child of a qualified K-3
foreign parent. Id.
[iii] See
e.g., Akram v. Holder, 721 F.3d 853, 856 (7th Cir. 2013) (explaining that
“although Akram was her foreign mother’s minor child for
K-visa purposes, she was not [her stepfather’s] minor child for
I-130 purposes”).
[iv]
Cen v. Attorney General, 825 F.3d 177, 185 (3d Cir. 2016).; see also 8 C.F.R. §
214.2(k)(10)(i) (2016). The K-4 visa holder over the age of eighteen at
the time of the marriage is unable to apply for an extension of stay when the
K-visa has expired after the two-year period, or if he turns twenty-one while
his application to adjust status is pending, because he must show that either
an I-130 petition, an immigrant visa based on an I-130 petition, or an
application to adjust status based on an I-130 petition is pending
approval. Cen, 825 F.3d at 185. However, the K-4 visa
holder between the ages of 18–21 is barred from having an I-130 petition filed
on his behalf because he does not qualify as the child of the
U.S. stepparent. Id. Thus, the K-4 child is unable to
successfully apply for an extension of stay. Id.
[v] See 8 C.F.R. §
214.2(k)(6)(ii) (2016) (“gap-filling” regulation for K-2 children).
[vi] Cen,
825 F.3d at 184.
[vii] Id. at
198 (emphasis added).
[viii] Id. at
187; see also 8 U.S.C. § 1255(d) (2016).
[ix] Id. at
190.
[x] Id.
[xi] Cen,
825 F.3d at 195.
[W]hile Congress was
presumptively aware that the definition of child when it passed the LIFE Act,
it was presumptively aware that the [USCIS] had long interpreted minor child to
mean an individual under age twenty-one and already interpreted [section]
1255(d), through the gap-filler regulation, to relieve K-2 children of the
strictures of [section] 1101(b)(1) for purposes of adjusting status.
Thus, had Congress intended to deviate from the gap-filler’s existing
interpretation [regarding K-4 children], we would expect such deviation to have
been explicit.
Id.
[xii] See
id. at 197.
[xiii] See
generally Akram v. Holder, 721 F.3d 853 (7th Cir. 2013) (discussing
how K-4 children re left with no recourse but to return abroad due to the
government’s impermissible construction of the statute).
[xiv] Id.
[xv] See
Cen, 825 F.3d at 179 (explaining that “these aliens may spend significant
time separated from their loved ones while they wait in their home countries
for the appropriate visa approval”).
