In the recent court case Akram v. Holder, decided on July 9, 2013, the US Court of Appeals for the Seventh Circuit challenged the law that has prevented K-4 children from getting a green card when their foreign national parent married the US citizen after the child reached age 18. This case is good news for K-3/K-4 spouse visa holders. If you have questions about the K visa, contact The Law Firm of Shihab & Associates for a consultation with our attorneys. We have more than 50 years of combined legal experience in a wide variety of complex and immigration law matters.
The Akram v. Holder case provides the solution to a serious problem with the K-1 visa law that is actually a nasty trap for unsuspecting foreign national fiancés of US citizens and their foreign national children. The K-3 visa allows a foreign national spouse of US citizen to come to United States to file the green card application and live with his/her US citizen spouse while the application is pending. The foreign national’s children are eligible to come also with a K-4 visa provided that they are under age 21.
Although a child who is under age 21 may qualify for the K-4 visa, a child who was over age 18 when the parent and US citizen married is not considered a stepchild of the US citizen, and therefore not eligible for a green card on that basis. The trap is sprung when a child is between the ages of 18 and 21 when the foreign national parent marries the US citizen, the child comes to the US with the parent, and then the child cannot get a green card and is subject to removal from the US.
In the Akram v. Holder case, Mahvash Akram was 18 years of age when her foreign national mother married a US citizen abroad, Farhan Siddique. Mahvash and her mother were granted K-3/K-4 visas, and they came to the US to live with Farhan while their green card applications were pending. Mahvash’s green card application was denied, and the US government filed removal proceedings against her. The reason was because Mahvash was not legally a stepchild of Farhan because she was over 18 when they Farhan married her mother.
The Court of Appeals compared the K-1/K-2 fiancé visa with the K-3/K-4 spouse visa, and noted that this would not have happened to Mahvash if her mother had a fiancé visa instead of a spouse visa. The K-1 fiancé visa allows a K-2 child to get a green card as a derivative of his/her K-1 parent. But the K-3 spouse visa does not allow a K-4 child to do this. Rather, the law has been interpreted to mean the K-4 child may get a green card as a derivative of a US citizen stepparent, not the biological K-3 parent.
Congress created the K-1/K-2 fiancé visa with the Immigration Marriage Fraud Amendments in 1986. The fiancé visa originally had the same problem that prevented K-2 children from getting a green card if they were not a stepchild of a US citizen. To fix this, 8 C.F.R. § 214.2(k)(6)(ii) was enacted as an administrative fix for K-2 children to adjust status without demonstrating a relationship to a US citizen.
For the next 14 years, a foreign national fiancé of US citizen could get a fiancé visa, but a foreign national spouse of US citizen in the same situation could not. This discrepancy remained until the year 2000 when Congress enacted the Legal Immigration Family Equity Act that created the K-3/K-4 spouse visa. However, no administrative or legislative fix was provided for K-4 children as was for K-2 children.
The Court of Appeals said “It is unclear why the same administrative fix was not made for K-4s.” The court held that there was no statutory reason for treating K-2 and K-4 visas differently because they both come from the same statutory language.
The court ruled that K-4 children are to be treated the same as K-2 children and may adjust status to permanent residence based upon their foreign national parent, not the US citizen stepparent. Consequently, the court reversed the denial of Mahvash’s green card and removal proceedings, and held that she could remain in the US and apply for a green card.
This decision is legal precedent for the seventh federal district: Illinois, Indiana, and Wisconsin. This decision is not binding on the rest of the country, but courts in other states may find this decision persuasive. If you have questions about the K visa, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.