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The Limitations and Termination of K-2 visa, 
and Children Who Are about to Reach 21 Years Old

1. The Benefits and Conditions of K-1 Visa

The K-1 fiancée visa is a nonimmigrant visa which allows the fiancé or fiancée of a U.S. citizen to enter into the U.S. and get married to the U.S. citizen. The benefits of the K-1 visa include:

1) The K-1 fiancée visa generally has a shorter processing time compared to marriage-based immigration visa petitions;

2) The alien fiancée/fiancé can apply for a work permit by filing Form I-765 and engage in employment;

3) The children of alien fiancée/fiancé can accompany the alien to the U.S. on the K-2 dependent visa, as long as they are named in the fiancée visa petition.

Until the marriage takes place, the alien fiancée/fiancé is considered a non-immigrant. The fiancée/fiancé may enter the United States only one time with a fiancée visa. If the fiancée/fiancé leaves the country before you are married, the fiancée/fiancé may not be allowed back into the United States without a new visa. 

If the marriage does not take place within 90 days, or the fiancée/fiancé marries someone other than the U.S. citizen filing the petition, the fiancée/fiancé will be required to leave the United States. If the fiancée/fiancé intends to live and work permanently in the United States, the fiancée/fiancé should apply to become a permanent resident after the marriage. If the fiancée/fiancé does not intend to become a permanent resident after the marriage, the new spouse must leave the country within the 90-day original non-immigrant admission.

2. The Limitations of K-1 Visa

The K-1 visa expires 90 days after the alien fiancée/fiancé enters the United States. Within that period, the alien fiancée/fiancé must marry the United States citizen petitioner, or face termination of her/his status and potential removal from the United States. If the alien fiancée/fiancé fails to marry the petitioner, the alien fiancée/fiancé will not be allowed to adjust his/her status in the United States from K-1 visa to immigrant status.

The law does not allow non-immigrant aliens to change to K status while they are in the U.S. It is solely available to those outside the U.S. for the purpose of family reunification with the U.S. citizens. Further more, K-1/ K-2 visa holders may not change to any other non-immigrant status while they are in the U.S. If a person is temporarily barred from entering into the U.S. for previous violation of U.S. immigration law, she or he cannot use K-1/K-2 visa to enter into the U.S.

If the fiancée/fiancé fails to marry the petitioner, she or he will not be allowed to adjust his/her status in the United States from K-1 visa holder to any other immigrant or nonimmigrant status. This does not mean that she or he would be barred from acquiring lawful permanent resident status if she or he were in fact eligible to immigrate based on other grounds, such as qualifying employment. She or he could only obtain such residency, however, by applying for an immigrant visa at an appropriate United States consulate abroad. she or he is also subject to the same grounds of inadmissibility caused by previous immigration law violations such as overstay status, etc.

3. The Termination of K-1/K-2 Status

The K-1/K-2 status will be terminated when the alien fiancée/fiancé marries someone other than the U.S. citizen who petitioned for her/him, and K-1/K-2 nonimmigrants are required to leave the U.S. if the anticipated marriage does not take place within 90 days.

Besides the 2-year limit for the status, K-1/K-2 nonimmigrant status will be terminated 30 days after the denial of one of the following:

  • The I-130 petition filed on the alien's behalf by the U.S. citizen petitioner;  

  • The alien's I-485 adjustment of status application.      

The K-2 status will also be terminated when the alien turns 21 years of age or is married.

4. Children Who Are about to Reach 21 Years Old

If you have children who intend to immigrate with you to the United States, if any of your children will turn 21 within 60 days, please notify the U. S. embassy or consulate immediately. If visa will be available in your category prior to your son or daughter's birthday, your case will receive expedited processing in order to ensure that your son or daughter will be able to immigrate with you.

Failure to notify the U. S. embassy or consulate that you have a child who will turn 21 could result in that child being above the legal age at the time your visa is issued. In that event, you will be required to file a separate petition for your child after you immigrate, and your son or daughter will face a waiting period before he or she will be eligible for visa processing.


5. Limited CSPA Coverage for K-2 Child before 21 Birthday


A K-2 child does not generally have a Form I-130 petition for alien relative filed by the U.S. citizen, which is required in order for Child Status Protection Act (CSPA) provisions to be applicable. Therefore, a K-2 child cannot utilize the CSPA when seeking to adjust status. Thus, a K-2 child may only seek Form I-485 adjustment before reaching the 21st birthday, and must adjust prior to his/her 21st birthday.

U.S. Citizenship and Immigration Services (USCIS) may accept a Form I-130 application filed by the U.S. citizen based on a parent-child relationship between the U.S. citizen and the K-2 child. For example, when the U.S. citizen has married the K-1 alien, and the K-2 child was not yet 18 years old at that time. In this situation, the K-2 child is considered the step-child of the U.S. citizen under the law. This will allow an alien child who once was in a K-2 status to adjust on the basis of being an immediate relative of a U.S. citizen, and allow the K-2 child to utilize the Child Status Protection Act (CSPA) when seeking adjustment of status - not age out while the Form I-485 application is pending. Exercising this CSPA option will require:

    * An existing parent-child relationship between the U.S. citizen petitioner and the K-2 child;

    * Filing of Form I-130 prior to the K-2 child's 21st birthday;

    * Submitting all required documentation and paying the required fees associated with Forms I-130 and I-485.


 

 

 

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