K-2/K-4 Adjustment of Status as the Step-Child of the U.S. Citizen & CSPA
In 2002, Congress passed CSPA to permit an applicant for certain immigration benefits to retain the classification as a “child” under Section 101(b)(1) of the INA even if he or she reaches the age of 21.
Limited CSPA Coverage for K-2s: An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday. Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).
Note: Exercising this option requires (i) an existing parent-child relationship between the U.S. citizen petitioner and the K-2 nonimmigrant; (ii) filing of Form I-130 prior to the K-2’s 21st birthday; and (iii) submitting all required documentation and paying the required fees associated with Forms I-130 and I-485.
CSPA Coverage of K-4s: An individual in K-4 status may utilize the provisions of CSPA upon seeking adjustment of status because a K-4 nonimmigrant seeks to adjust as an immediate relative of a U.S. citizen on the basis of a Form I-130 filed by his or her U.S. citizen step parent. See 8 CFR 245.1(i) for further information. This petition can only be filed if a parent-child relationship between the U.S. citizen and the K-4 nonimmigrant exists and the marriage between the U.S. citizen and the K-4’s parent occurred before the child’s 18th birthday. Since the K-4 child’s age “freezes” on the date the Form I-130 is filed, a K-4 benefits from the CSPA as long as the Form I-130 petition is filed before the K-4’s 21st birthday.