Third Circuit Court of Appeals Strikes Down Regulation That Limits Adjustment of Status for K-4 Visa Holders

The U.S. Third Circuit Court of Appeals struck down a federal regulation that prevented K-4 visa holders from becoming lawful permanent residents after their parents married U.S. citizens, finding the rule was "manifestly contrary" to the Immigration and Nationality Act ("INA"). In a precedential decision, the appeals court reversed a decision from the Board of Immigration Appeals ("BIA") that sound Si Min Cen, a young Chinese woman, was ineligible to adjust her status to become a lawful permanent resident. The case addressed a quirk in the immigration law that effectively barred the K-4 children of spouses of U.S. citizens from adjusting their status if they were between the ages of 18 and 21 at the time of the marriage. In the decision, Judge Cheryl A. Krause said the regulation was invalid because it "departs from the plain language of the INA, contravenes congressional intent, and exceeds the permissible scope of the Attorney General's regulatory authority." The case was sent back to the BIA for further proceedings. Under the INA, when a foreign national enters the U.S. on K-1 visa, the children who accompany the foreign national are given a K-4 visa, provided they are single and under the age of 21. It is a temporary non-immigrant visa, meant to allow the child to live in the U.S. with their parents while they wait for their permanent visa to be approved. But a Department of Homeland Security regulation prevents children from adjusting their status if they were over the age of 18 at the time of the marriage. So, someone like Ms. Cen, who was 19 when her mother married her stepfather, would have to return to China to apply for a permanent visa. Overturning the decision on Monday, the Third Circuit said the purpose of the K visas was to allow families to remain together while they await an adjustment of status. The Court said that the government's position requiring children in this age bracket to leave the U.S. to apply for lawful permanent resident status, "...defies common sense."
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