K2 Visa tips for children of alien fiancés

by Richard Bracken on October 7, 2009

children-300x197I have helped many individuals obtain K1 fiancé’s Visas that also had children they wanted to bring with them.  As you may recall, children of alien fiancé’s enter the U.S. on the K2 Visa. There are several important things to be aware of when children are accompanying the alien.

The U.S. government defines a child for immigration purposes as a son or daughter who is under 21 years of age. Thus, an alien fiancé’s child can only follow the K1 fiancé as a K2 entrant so long as the said child is under the age of 21.

Moreover, in addition to the several forms outlined in the simple K1 system for accompanying children, the Consulate will want evidence that the alien fiancé has received the requisite permission to travel outside the country with his or her child. Usually this is accomplished with a notarized letter written by the child’s other parent indicating his or her consent for the child to travel with the alien fiancé.

Children over the age of 18
Another important issue to consider before filing is that there are special rules that involve the ability of the U.S. step-parent to file for the alien child to become a lawful permanent resident after entering the U.S.  Normally, the Immigration and Nationality Act requires that children of an alien fiance be under 18 years of age at the time that the step-parent relationship occurs (the marriage).  This general rule however, does not apply to children who enter with K-2 visas because the the Marriage Fraud Ammendments of 1986 made such visas available to all ”minor children” of a qualifying alien fiance. 

Because the Ammendments failed to define what a ‘minor child’ was, the Service is obliged to allow children who enter with K-2 visas to adjust status even if they are over 18 years of age when the parent and step-parent marry.  The child must also have abided by the terms of his or her entry (marriage by the parent  within 90 days) and be otherwise admissible.  Nevertheless, the child must remain under 21 years of age by the time they adjust status to permanent residency via the U.S. citizen step-parent in order to be considered an immediate relative. USCIS’s current position on the exception can be found at: http://www.uscis.gov/files/pressrelease/K2AdjustStatus031507.pdf

Note, this exception only applies to children of an alien fiance who enters with a K2 visa and not to children of an alien spouse (K3/K4). 

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