On July 20, 2012, the Board of Immigration Appeals (BIA) held that K-4 visa holders could only adjust status based on the I-130 filed by the K visa petitioner, and not on the basis of her own subsequent marriage to a U.S. Citizen.
In Matter of Valenzuela, 25 I&N Dec. 867 (BIA 2012), the respondent came to the U.S. with K-4 visa as a derivative of her mother’s K-3 visa (as the spouse of a United States citizen). Her mother adjusted her status to that of a lawful permanent resident based on her marriage to the K visa petitioner (U.S. Citizen husband). The respondent also sought to adjust her status based on the visa petition filed on her behalf by the K visa petitioner (Respondent’s step-father). However, the I-130 petition was denied as a result of the Respondent’s failure to attend the interview. Later, she married her U.S. citizen husband, and she sought to adjust her status again based on marriage to a U.S. citizen. However, the Immigration Judge denied her adjustment application because she is ineligible to adjust her status on any basis other than I-130 filed by the K visa petitioner (her step-father in instant case).
The issue was whether a derivative of a K visa (K-4 visa holder) may adjust her status to that of a lawful permanent resident based on her own subsequent marriage to a U.S. citizen. The BIA concluded that the statute clearly bars the adjustment of K visa derivative through a different petition. The BIA held that “if the respondent were correct that a K visa derivative beneficiary is eligible to adjust through a different petitioner, then a K visa derivative would be in a better position than the principal K visa holder.” The BIA also added that they cannot presume that one type of petitioner may be substituted for another in order to make an alien eligible for adjustment of status.
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