July 25, 2012
Although the K nonimmigrant visa is one of the most often obtained visas, individuals often times are not fully aware that entry into the United States as a K nonimmigrant imposes a strict restriction regarding an individual’s ability to adjust status to permanent residency. While K visas are generally associated with being a fiancée, K visas are also available to spouses and children of United States citizens. A recent court decision issued by the Board of Immigration Appeals (BIA) fully illustrates the potential dangers of entering the US as a K nonimmigrant.
The case, Matter of Valenzuela, involves a Filipina who was petitioned by her United States citizen step-father for a K-4 nonimmigrant visa. Ms. Valenzuela’s mother also entered the US as a K-3 nonimmigrant through same petitioner, and successfully adjusted status to permanent residency. Unfortunately, Ms. Valenzuela, did not encounter the same success.
As is required under the K visa, Ms. Valenzuela applied for adjustment of status based on her K-4 petitioner’s relative petition after entering the US. The applications were denied, however, when Ms. Valenzuela failed to appear for the interview. Ms. Valenzuela and her K-4 petitioner step-father again filed the necessary applications for adjustment of status. The Department of Homeland Security (DHS) again denied the applications, this time because Ms. Valenzuela had already turned 21 and therefore aged-out.
Thereafter, Ms. Valenzuela got married and consequently filed the required applications seeking to adjust her status based on her marriage to a United States citizen. Unfortunately, the immigration judge denied Ms. Valenzuela’s applications, and the BIA decision issued on July 20, 2012, affirms the judge’s denial.
In denying the applications, the court affirmed the K visa restriction that an individual who enters the US as a K nonimmigrant can only adjust through a petition by the K visa petitioner. Although Ms. Valenzuela’s mother successfully adjusted status through the same K visa petitioner, this was not sufficient to allow her to adjust status through her US citizen husband.
This K visa restriction is a significant factor that individuals must consider when assessing whether to pursue the K visa or proceed directly to a marriage-based green card. Relationships are all different, with the levels of trust and respect within relationships greatly variable. Individuals should understand that a K visa provides significant control of the beneficiary by the petitioner because of this inability to adjust through any other person. For example, if an individual enters the US as a K fiancée, the individual will be left with absolutely no options but to depart the US should the US citizen decide not to marry the individual. As well, a K nonimmigrant can experience great problems should the K petitioner decide to no longer support the adjustment application.
The K visa certainly has its advantages, such as typically being issued months faster than an immigrant visa. Individuals simply need to be aware of the legal restrictions placed upon someone who enters the US as a K nonimmigrant to truly determine whether it is the best option to pursue given their particular relationship and situation.