K-2 VISA HOLDERS DO NOT AGE OUT

The Tenth Circuit recently held that K-2 visa holders do not "age-out" for purposes of adjustment of status.   The petitioner entered the United States in K-2 status 6 months before turning 21. His mother married the US citizen within the required 90 days, and the petitioner and his mother applied for adjustment of status before he turned 21. USCIS took two and a half years to decide his application for adjustment of status. USCIS denied the application based on Petitioner's age on the date of adjudication of the application. An Immigration Judge found that Petitioner was not eligible to adjust status because he was over the age of 21, and the BIA affirmed with a one paragraph unpublished decision.
The Court went on to do an analysis of statutory construction and found that there is no age limitation on adjustment of status of K-2 visa holders.  This exact issue is now before the BIA on several cases. AIC recently filed an amicus brief with the Board that addresses all the K-2 age out issues at length. Hopefully this Tenth Circuit decision will have an impact on the BIA decision on this issue that could come out any day.