Question:
I was in the K-2 status
before, and will reach 21 birthday soon. Can I get Green Card without
leaving the United States using CSPA protection?
Answer:
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.
|