The Board of Immigration Appeals, in a recent case — Matter of Hieu Trung LE, 25 I&N Dec 541 (BIA-June 23, 2011)—- decided that if a derivative child of a F-1 fiance visa visa enters the country before the child is 21 (Note not 18), then even if he turns 21 before adjusting status, the child will still get the Permanent Residency.
The Citizenship and Immigration Services (CIS) had held that under INA 101(b)(1) (B), that if a child turns 18 at the time of a parent’s marriage, then the child cannot be a derivative beneficiary of the step parent and adjust for status. But the Board of Immigration Appeals, held in the case above that as long as the child is less than 21 at the time of the marriage, he can adjust even after he turns 21.
The child here was from Vietnam and was granted a K-2 visa and accompanied his mother, the K-1 visa holder when the child was 19. They entered the US. The mother married the US Petitioner after a week, and both she and the child filed for Adjustment of Status. The CIS granted the mother’s adjustment, but denied the child’s becasue he was older than 18.
The child was put in removal (deportation) proceedings. By the time the case got to a judge, the child had turned 21. The Immigration Judge held that the child was eligible to adjust status when he was 19, but cant anymore since he turned 21.
The Board of Immigration Appeals (BIA) held that when the statue does not define what a minor child’s age is, it will be 21 under INA 101(b)(1) , which included unmarried children under the age of 21. The BIA also held that since in this case, the child entered when he was 19, and his mother did get married when he was 19; the child can adjust status to become a legal permanent resident.