Redmond, WA asked in Immigration Law for Washington

Q: Can a K2 visa holder file I-485 if he is over 21 years old? (given that he entered the US before he was still under 21)

The son will turn 21 after 5 days from entering the US. This does not give enough time for his father (the k1 holder) and his fiance to marry and file the I-485 before the son turns 21. They are worried that the son will lose his eligibility to file the adjustment of status. Could you please help us know how the law handles this case?

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1 Lawyer Answer
James L. Arrasmith
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  • Immigration Law Lawyer
  • Sacramento, CA

A: In the situation you've described, the Child Status Protection Act (CSPA) may offer a solution for the K-2 visa holder who is turning 21 shortly after entering the United States. This act was designed to prevent minors from losing their eligibility for certain immigration benefits due to processing delays that lead them to age out or turn 21 before the necessary steps can be completed. Under the CSPA, the age of a child is effectively "frozen" under certain conditions, allowing them some leeway to complete the immigration process without the risk of aging out.

For a K-2 visa holder, the key factor is the timing of their entry into the U.S. and the subsequent marriage of the K-1 visa holder (the parent) to the U.S. citizen. If the K-1 parent marries the U.S. citizen within 90 days of entry as required, and then promptly files for Adjustment of Status (Form I-485), the child's age for immigration purposes may be protected under the CSPA. However, the specific details of how the CSPA applies can be complex, and the timing of the marriage and filing is crucial.

Given the tight timeframe and the complexity of immigration laws, it's strongly recommended to consult with an immigration attorney who can provide personalized advice based on the latest regulations and procedures. They can assess how the CSPA might apply to your specific case and guide you through the process to ensure the best chance of maintaining the K-2 visa holder's eligibility for Adjustment of Status. This professional guidance can help navigate the nuances of the law and address any concerns about aging out.

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