PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-4831

_____________

SI MIN CEN,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

_____________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA No. A200-377-255)

Immigration Judge: Honorable Frederic G. Leeds

_____________

Argued: October 5, 2015

Before: SHWARTZ, KRAUSE, and GREENBERG, Circuit 

Judges

(Opinion filed: June 6, 2016)

_____________
2

Scott E. Bratton, Esquire (Argued)

Margaret Wong & Associates

3150 Chester Avenue

Cleveland, OH 44114

Counsel for Petitioner

Jeffrey R. Meyer, Esquire

Robert M. Stalzer, Esquire (Argued)

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_____________

OPINION OF THE COURT

_____________

KRAUSE, Circuit Judge.

The Immigration and Nationality Act (INA) allows a

child under the age of twenty-one whose alien parent has 

married a U.S. citizen abroad to obtain a temporary “K-4” 

visa to accompany her parent to the United States and, based 

on the parent’s marriage, to apply to adjust her status to that 

of a lawful permanent resident. On a petition for review of a 

decision of the Board of Immigration Appeals (BIA), we now 

consider the validity of a regulation that makes it impossible 

for a child who entered on such a visa to remain with her 
3

family and adjust her status from within the United States if 

she was over the age of eighteen at the time of her parent’s 

marriage. Because the regulation departs from the plain 

language of the INA, contravenes congressional intent, and 

exceeds the permissible scope of the Attorney General’s 

regulatory authority, we conclude it is invalid. We therefore

will grant the petition for review and will reverse and remand

to the BIA for further proceedings.

I. Background

As a general matter, aliens abroad who have relatives 

in the United States may be eligible to obtain lawful 

permanent residence, but because it can take months or even 

years for the pertinent paperwork to be processed, these aliens 

may spend significant time separated from their loved ones 

while they wait in their home countries for the appropriate

visa approval. See, e.g., 8 U.S.C. §§ 1151-1154; 146 Cong. 

Rec. 27,160 (2000) (describing the lengthy delays faced by 

those seeking relative-based visas). Congress sought to 

ameliorate this problem for the immediate family members of 

U.S. citizens through the creation, initially, of K-1 visas for 

alien fiancé(e)s of U.S. citizens and then, more recently, of K3 visas for alien spouses of U.S. citizens. In addition, and of 

particular significance for this case, Congress also provided 

for K-2 and K-4 visas for, respectively, the minor children of 

fiancé(e)s and spouses, up to age twenty-one.1

 1 The statutes relevant to K-2 and K-4 visa holders 

refer to them as “minor child[ren],” 8 U.S.C. 

§§ 1101(a)(15)(K)(iii), 1255(d), a term the BIA has long held,

and the parties do not dispute, has the same meaning as 

“child” under 8 U.S.C. § 1101(b)(1). See, e.g., In re Le, 25 I.
4

Once reunited with their families stateside, aliens with 

one of these K-visas may apply for and, subject to the 

discretion of the Attorney General, attain lawful permanent 

residence without leaving the United States through a process 

called “adjustment of status.” Petitioner in this case properly 

obtained a K-4 visa as the nineteen-year-old daughter of a K3 alien spouse and accompanied her mother to the United 

States to live with her stepfather, a U.S. citizen, while 

Petitioner and her mother applied for adjustment of status. 

Petitioner’s applications have been denied, however, on 

account of a regulation that effectively bars any child with a 

K-4 visa who was between the ages of eighteen and twentyone at the time of her parent’s marriage from obtaining lawful 

permanent residence without first returning overseas. Our 

analysis of Petitioner’s challenges to the validity of this 

 

& N. Dec. 541, 547-50 (BIA 2011); see also 8 C.F.R. 

§ 214.2(k)(3). “Child” is defined as “an unmarried person 

under twenty-one” who fits within one of the subcategories 

under § 1101(b)(1), some of which impose additional age 

requirements. For purposes of this case, Petitioner was born 

to her biological mother (by all representations, in wedlock) 

and thus is not subject to additional age restrictions. 

§ 1101(b)(1)(A). Accordingly, our regular reference in this 

opinion to children under the age of twenty-one should not be 

construed to implicitly remove the additional age restrictions 

on accessing a K-visa that would accompany certain 

categories of children. E.g., § 1101(b)(1)(E)(i) (generally 

restricting adopted children from the definition of “child” 

under the INA if they were over the age of sixteen at the time 

of the adoption). As discussed in more detail below, infra

notes 11 & 15, we accept the BIA’s interpretation of the term 

“minor child.”
5

regulation requires an understanding of the statutory and 

regulatory regime that governs K-visa holders, as well as the 

factual and procedural history of Petitioner’s case. We 

address each below.

A. Statutory and Regulatory Context

The story of K-visas begins in 1970, when Congress 

created K-1 and K-2 visas to allow the fiancé(e)s of U.S.

citizens and such fiancé(e)s’ unmarried children under the age 

of twenty-one, respectively, to obtain temporary, 

nonimmigrant status. Assuming the fiancé(e) and the U.S.

citizen married within three months, that status would allow 

the fiancé(e) and children to await processing of their 

applications for lawful permanent residence from within the 

United States. Act of Apr. 7, 1970, Pub. L. No. 91-225, 

§ 1(b), 84 Stat. 116, 116. In their original form, K-1 and K-2 

visas triggered automatic lawful permanent residence for the 

visa holders once the marriage was complete. See id. at 

§ 3(b). This feature had the perverse effect, however, of

encouraging fraudulent marriages whereby some aliens 

obtained K-1 visas and married U.S. citizens with the 

intention to dissolve the marriage once they obtained lawful 

permanent residence. In re Sesay, 25 I. & N. Dec. 431, 435-

38 (BIA 2011) (describing this marriage fraud problem).

In 1986, Congress sought to curb such marriage fraud 

by passing the Immigration Marriage Fraud Amendments 

(IMFA), Pub. L. No. 99-639, 100 Stat. 3537 (1986), which

replaced K-1 and K-2 aliens’ streamlined method of obtaining 

lawful permanent residence with the more structured 

“adjustment of status” process. IMFA § 3(c); see also Carpio 

v. Holder, 592 F.3d 1091, 1094 (10th Cir. 2010) (describing 

the post-IMFA requirement that K-visa holders file an 
6

application for adjustment of status in order to obtain lawful 

permanent residence). Since the passage of the IMFA, K-1

and K-2 aliens are required to apply to adjust their status like 

other aliens through the strictures of 8 U.S.C. § 1255(a), 

which gives the Attorney General the discretion to provide

lawful permanent residence to certain aliens without requiring 

them to first return to their countries of origin. See IMFA 

§ 3(c). K-visa holders’ adjustment of status under § 1255(a) 

is constrained by 8 U.S.C. § 1186a, which renders an alien’s 

permanent status conditional for two years, after which time 

the Government conducts an interview with the couple to 

reaffirm the legitimacy of the marital union; if the 

Government is satisfied, the status for both the alien spouse 

and her children becomes truly permanent. IMFA § 2.

To apply for status adjustment under § 1255(a), an 

alien must take three steps: (1) file an application to adjust 

status; (2) demonstrate eligibility under existing law to adjust 

status; and (3) show that a permanent visa is immediately 

available.2

 8 U.S.C. § 1255(a). Once an application is filed, 

 2 This third requirement refers to the limited number of 

permanent visas apportioned to a given nation. Spouses and 

children of U.S. citizens do not have to wait for such visas 

because a separate statute makes permanent visas always 

available to them regardless of their country of origin. 

8 U.S.C. § 1151(b)(2)(A)(i). Meanwhile, children of lawful 

permanent residents may obtain lawful permanent residence 

themselves, but must wait for a country-specific visa to 

become available. 8 U.S.C. § 1153(a)(2). Notably, even if a 

K-visa holder’s parent becomes a citizen (as has Petitioner’s 

mother), a K-visa holder must adjust through the § 1255(a) 

process and cannot invoke a different basis for adjustment at 
7

the ultimate decision as to whether that application is granted 

is left to the discretion of the Attorney General, who also has 

authority to promulgate regulations governing the adjustment 

of status process. Id. The IMFA also created 8 U.S.C. 

§ 1255(d), which, in its first iteration, barred the Attorney 

General from adjusting a nonimmigrant’s status solely on the 

basis of the K-visa. IMFA §§ 2(e), 3(b). That had the effect 

of forcing K-1 and K-2 aliens to satisfy § 1255(a)(2)’s 

eligibility requirement through the traditional means available 

under the INA to alien family members—by proving a legally 

cognizable familial relationship with the U.S. citizen 

petitioner under 8 U.S.C. § 1151(b)(2)(A)(i), such as a marital 

or a parent-child relationship. See, e.g., Kondrachuk v. U.S. 

Citizenship & Immigr. Servs., No. C 08–5476 CW, 2009 WL 

1883720, at *1-2 (N.D. Cal. June 30, 2009) (describing the 

adjustment process for K-visa holders under § 1255(a)). 

Procedurally, this meant that once the marriage took place, 

not only the K-1 alien parent but also each K-2 stepchild 

would need to prove eligibility through the submission of an 

I-130 petition—a petition filed by the U.S. citizen attesting 

that the K-2 alien was the “child” of the U.S. citizen. See id.; 

Dep’t of Homeland Sec., Instructions for Form I-130, Petition 

for Alien Relative (Mar. 23, 2015), available at

https://www.uscis.gov/sites/default/files/files/form/i130instr.pdf (last visited Mar. 22, 2016) (hereinafter 

“Instructions for Form I-130”).

This new requirement, however, produced an 

unintended consequence for some K-2 children because, 

under the INA, a stepchild only qualifies as a “child” of a 

 

a later date, e.g., adjustment based on her parent’s 

naturalization. See 8 C.F.R. § 245.1(c)(6)(ii).
8

U.S. citizen if “the child had not reached the age of eighteen 

years at the time the marriage creating the status of stepchild 

occurred.” 8 U.S.C. § 1101(b)(1)(B). Thus, an alien child up 

to age twenty-one could obtain a K-2 visa and accompany her 

alien parent and any younger siblings to the United States, 

but, if she was eighteen to twenty-one years old when the 

marriage took place, the U.S. stepparent could not file an I130 petition on her behalf. The stepchild, in other words, had 

no mechanism to satisfy the requirements of § 1255(a)(2) and 

no other means to adjust status from within the United States. 

See, e.g., Kondrachuk, 2009 WL 1883720, at *1-2 

(recounting the effect of the IMFA on K-2 visa holders); see 

also Memorandum from Michael L. Aytes, Assoc. Dir., U.S. 

Citizenship & Immigr. Servs. Domestic Ops., Regarding

Adjustment of Status for K-2 Aliens (Mar. 15, 2007), 

available at https://www.uscis.gov/sites/default/

files/USCIS/Laws/Memoranda/Static_Files_Memoranda/

k2adjuststatus031507.pdf (last visited Mar. 22, 2016) (“Aytes 

Memorandum”) (confirming the unintentional IMFA-created 

gap). The upshot was that, upon expiration of her K-2 visa, 

the stepchild was required to separate from her parents and 

siblings and to return to her home country to apply for 

admission to the United States from abroad based on her alien

parent’s newfound status as a lawful permanent resident. See

8 U.S.C. § 1153(a)(2); Kondrachuk, 2009 WL 1883720, at *2

& n.3 (explaining that because an immigrant visa is not 

“immediately available” to a K-2 child based on the lawful 

permanent resident status of her alien parent, such child may 

not adjust status within the United States via § 1255(a)).
9

This unintentional gap for older K-2 children3

prompted the then-existing Immigration and Naturalization 

Service (INS)4 to take corrective action only two years after 

the IMFA passed, which led—in conjunction with statutory 

amendments passed by Congress in the same year—to the 

regime that governs the status adjustment process for K-2 

children today. The INS promulgated 8 C.F.R. 

§ 214.2(k)(6)(ii) (the “gap-filler”), under which a K-2 visa 

holder is deemed eligible to apply for status adjustment based 

solely on her K-1 parent “contracting a valid marriage to” the 

U.S. citizen who originally petitioned for the K-1 visa (so 

long as the marriage occurs within ninety days of the K-1 

parent’s “admission as a nonimmigrant pursuant to a valid K1 visa”). See also Marriage Fraud Amendments Regulations, 

53 Fed. Reg. 30,011, 30,017-18 (Aug. 10, 1988)

(Supplementary Information). This gap-filling regulation

 3 Throughout this opinion, we use the descriptors 

“older K-2” and “older K-4” to refer to a child who is under 

twenty-one and thus young enough to obtain a K-2 or K-4 

visa, but who was also over eighteen at the time of her 

parent’s marriage and thus too old to qualify under 8 U.S.C. 

§ 1101(b)(1)(B) as the “child” of her new stepparent.

4 On March 1, 2003, the INS was disbanded as an 

independent agency within the United States Department of 

Justice, and its functions were reassigned to the United States 

Department of Homeland Security. Homeland Security Act 

of 2002, Pub. L. No. 107-296, §§ 441, 451 & 471, 116 Stat. 

2135, 2177-2212, codified at 6 U.S.C. §§ 251, 271 & 291. 

The INS was the agency responsible for promulgating all the 

regulations at issue in this case.
10

eliminated the need for a K-2 child to prove eligibility 

through her stepparent’s I-130 petition by hinging the child’s

eligibility instead on her parent’s marriage and not on her 

relationship with the U.S. stepparent. See In re Akram, 25 I. 

& N. Dec. 874, 878 & n.6 (BIA 2012) (citing In re Le, 25 I. & 

N. Dec. 541, 546 (BIA 2011) and In re Sesay, 25 I. & N. Dec. 

at 438-40); In re Le, 25 I & N. Dec. at 550; Aytes 

Memorandum.

While the rulemaking process for the gap-filler was 

underway, Congress also was legislating to the same effect, 

and only a few months after the gap-filler was finalized, 

President Reagan signed into law the Immigration Technical 

Corrections Act of 1988 (ITCA), Pub. L. No. 100-525, 102 

Stat. 2609, which added language to § 1255(d) that serves

virtually the same function as the gap-filler for K-1 and K-2 

visas—the only K-visas then in existence. The ITCA

amended § 1255(d) to allow the Attorney General to adjust 

the status of a K-visa holder “as a result of the marriage of the 

nonimmigrant (or, in the case of a minor child, the parent) to 

the citizen who filed the petition to accord that alien’s [K-1 or 

K-2] nonimmigrant status,” thus making explicit that 

eligibility for even an older K-2 child’s status adjustment 

turned on the marriage and not whether the alien qualified as 

her stepparent’s “child” under 8 U.S.C. § 1101(b)(1)(B). See

ITCA § 7(b).

More than a decade later, in recognition of the fact that

K-visas benefited only alien fiancé(e)s and their children

while alien spouses and their children (who were already 

stepchildren of U.S. citizens) still had to wait out approval of 

their lawful permanent residence from abroad, Congress

expanded the K-visa program to create K-3 visas for foreign 

spouses and K-4 visas for their minor children. See The 
11

Legal Immigration Family Equity (LIFE) Act, Pub. L. No. 

106-553, § 1103(a), 114 Stat. 2762, 2762A-142 (2000) (as 

amended 2000); H.R. Rep. No. 106-1048, at 229-30 (2001). 

Because the marriage has already taken place, the process for 

obtaining these visas and adjusting status under the LIFE Act 

varies slightly from that governing K-1 and K-2 visa holders. 

To obtain a K-3 visa, the U.S. spouse must file two forms: an 

I-129F petition, which lists the alien spouse’s children, 

requires submission of a valid marriage certificate, and serves 

as the petition for the K-visa itself, and an I-130 petition, 

which identifies the marital relationship between the spouses

and begins the process for conferral of permanent residence. 

See In re Akram, 25 I. & N. Dec. at 877; 8 C.F.R. 

§ 214.2(k)(7); Dep’t of Homeland Sec., Instructions for 

Petition for Alien Fiancé(e)5 (June 13, 2013), available at

https://www.uscis.gov/sites/default/files/files/form/i129finstr.pdf (last visited Mar. 22, 2016); Instructions for 

Form I-130. Upon approval of the I-129F petition and a 

subsequent interview at a United States embassy or consulate 

in the aliens’ home country,6 a K-3 visa is issued to the alien 

 5 While the I-129F petition is still called the “Petition 

for Alien Fiancé(e),” its instructions expressly indicate that it 

is also the proper form to file on behalf of a K-3 spouse. 66 

Fed. Reg. 42,587, 42,589 (Aug. 14, 2001) (explaining that, 

upon passage of the LIFE Act, the INS would “use the Form 

1-129F [to consider petitions for K-3 and K-4 visas] until 

further notice”).

6 At this interview, each alien seeking a K-3 or K-4 

visa must provide the following: (1) an individual Form DS160 application for each individual (including one for each 

child, though each child’s eligibility is ultimately tied to the 
12

spouse and K-4 visas are issued to the unmarried children of 

the alien spouse under the age of twenty-one. In re Akram, 

25 I. & N. Dec. at 877; 8 C.F.R. § 214.2(k)(3). A K-4 visa 

then lasts for two years or until a child’s twenty-first birthday, 

whichever comes first. 8 C.F.R. § 214.2(k)(8).

Consistent with the goal of reunifying families 

stateside pending approval of their permanent residence, the 

LIFE Act also amended certain portions of the INA,

reflecting an intention that K-2 and K-4 children would be 

accorded the same treatment. The LIFE Act reorganized the 

subsection that creates all K-visas by authorizing K-1 visas 

for fiancé(e)s in 8 U.S.C. § 1101(a)(15)(K)(i), K-3 visas for 

spouses in § 1101(a)(15)(K)(ii), and K-2 and K-4 visas for 

both categories of children (the children of K-1s and K-3s, 

respectively) in § 1101(a)(15)(K)(iii). LIFE Act § 1103(a). 

Thus, Congress provided for the issuance of both K-2 and K4 visas in the same statutory section, defined their intended 

 

single I-129F form filed by the American citizen); (2) a valid 

passport; (3) original or certified copies of birth certificates, 

the marriage certificate for the marriage to the U.S. citizen 

spouse, divorce or death certificates for any previous 

marriages, and police certificates identifying past and present 

countries of residence; (4) proof of a medical examination; 

(5) evidence of financial support; (6) passport-style 

photographs; (7) additional evidence of the spouse’s 

relationship with the U.S. citizen; and (8) application fees for 

each visa recipient. U.S. Dep’t of State: Bureau of Consular 

Affairs, Nonimmigrant Visa for a Spouse (K-3), 

https://travel.state.gov/content/visas/en/immigrate/family/spo

use-citizen.html (last visited Mar. 22, 2016).
13

recipients in the same terms as “the minor child[ren] of [K-1 

or K-3 visa holders] [who are] accompanying, or following to 

join [their alien parents],” 8 U.S.C. § 1101(a)(15)(K)(iii), and 

extended § 1255(d)—the section that tied K-2 children’s 

eligibility for adjustment of status under § 1255(a)(2) to “the 

marriage of the [child’s parent] . . . to the citizen”—to K-4

children as well, see LIFE Act § 1103(c)(3).

Notwithstanding Congress’s clear articulation of its 

intent to accord the same reunification benefits to K-4 

children as enjoyed by their K-2 counterparts, the INS took 

the opposite tack. It not only failed to amend the 8 C.F.R. 

§ 214.2(k)(6)(ii) gap-filler to reach older K-4 children or to 

promulgate a new regulation to plug any perceived gap for 

such individuals, it also promulgated 8 C.F.R. § 245.1(i) (“the 

Regulation”), which recreated for older K-4 children the very 

gap that § 1255(d) and 8 C.F.R. § 214.2(k)(6)(ii) had filled

for older K-2 children. See “K” Nonimmigrant Classification 

for Spouses of U.S. Citizens and Their Children Under the 

Legal Immigration Family Equity Act of 2000, 66 Fed. Reg. 

42,587, 42,594 (Aug. 14, 2001) (Supplementary Information). 

That is, instead of signaling that a K-4 child may adjust status 

without being the beneficiary of a separate I-130 petition (an 

impossibility for an alien child who does not qualify as the 

“child” of her U.S. stepparent by virtue of having been over 

eighteen at the time of the marriage), the Regulation provides:

An alien admitted to the United States as a K-4 

under [8 U.S.C. § 1101(a)(15)(K)(iii)] may 

apply for adjustment of status to that of 

permanent residence pursuant to [8 U.S.C. 

§ 1255] at any time following the approval of 

the Form I-130 petition filed on the alien’s 
14

behalf, by the same citizen who petitioned for 

the alien’s parent’s K-3 status.

8 C.F.R. § 245.1(i) (emphasis added). 

The Regulation thus ensnares a K-4 child who was 

over the age of eighteen at the time of her parent’s marriage 

in a legal quandary. Having qualified for the K-4 visa to 

accompany her parent and younger siblings to the United 

States to reunite with her U.S. stepparent, a K-4 child 

between ages eighteen and twenty-one is limited by the 

Regulation to obtaining lawful permanent residence only by 

way of an I-130 petition filed by her stepparent—a petition 

which § 1101(b)(1)(B) precludes that stepparent from filing 

for a stepchild in this age group. Such a child, in other words, 

has no recourse but to leave her family behind in the United 

States and return to her home country to apply for a 

permanent visa from abroad.7

It may seem strange to impose this plight on the 

children of alien spouses given that the children of alien 

fiancé(e)s may adjust status as a direct consequence of the 

marriage and without having to independently demonstrate a 

parent-child relationship with their U.S. stepparents under

§ 1101(b)(1)(B); that both K-2 and K-4 children obtain their 

 7 A K-4 child who was under eighteen at the time of 

her parent’s marriage is still able to apply for adjustment of 

status under the Regulation because, due to her age at the 

time of the marriage, she would still qualify as her 

stepparent’s “child” under § 1101(b)(1)(B). Her I-130 

petition thus could be approved and would render her eligible 

to apply for permanent residence under § 1255(a).
15

nonimmigrant visas under § 1101(a)(15)(K)(iii); and that both 

K-2 and K-4 children derive their eligibility to adjust status 

from the same source: § 1255(d). The Regulation, however, 

does just that. In re Akram, 25 I. & N. Dec. at 879-81, 883 

(confirming that the Regulation establishes this catch-22 for 

older K-4 children and expressly acknowledging that the 

8 C.F.R. § 214.2(k)(6)(ii) gap-filling regulation absolves K-2 

children of the same fate). Although the Seventh Circuit, in 

Akram v. Holder, 721 F.3d 853, 864-65 (7th Cir. 2013), 

struck down the Regulation as ultra vires, the Government 

has continued to enforce it outside that Circuit—in this case 

visiting its consequences upon Petitioner Si Min Cen.

B. Factual and Procedural Background

Cen is a Chinese national who was nineteen when her 

mother married a U.S. citizen in China. After properly 

obtaining her K-4 visa and moving to the United States with 

her mother, Cen filed an application to adjust her status. As 

required by the Regulation, Cen’s U.S. stepfather filed an I130 petition on her behalf, but that petition and hence Cen’s 

application were denied because Cen was nineteen when her 

mother married and therefore could not be deemed her 

stepfather’s “child” under § 1101(b)(1)(B) for purposes of her 

stepfather’s I-130 petition.

8

At the same time, however, the Regulation also 

precluded Cen from adjusting her status on the basis of her 

 8 It is undisputed that, once Cen passed her twenty-first 

birthday, her K-4 visa expired, 8 C.F.R. § 214.2(k)(8), and if 

she remains in the United States today, she does so without 

authorization.
16

mother’s immigration status. After becoming a lawful 

permanent resident, Cen’s mother filed an I-130 petition on 

Cen’s behalf, which, because Cen is the biological child of 

her mother, was approved by the Government. On the basis 

of this approved I-130 petition, Cen again applied for 

adjustment of status, but she was denied this time because 

even though her mother’s I-130 petition on her behalf had 

been approved—and even though her mother by that point 

had become a naturalized U.S. citizen—the Regulation 

specifies that, in order to be eligible for status adjustment, a 

K-4 child’s I-130 petition must be filed by “the same citizen 

who petitioned for the alien’s parent’s K-3 status,” i.e., the 

U.S. stepparent. 8 C.F.R. § 245.1(i).

Thwarted at every turn, Cen turned to the courts, 

challenging the Regulation and the denial of her application 

in the U.S. District Court for the District of New Jersey. At 

least initially, Cen was again blocked when the Government 

opened removal proceedings against her for overstaying her 

original K-4 visa and served her with a Notice to Appear. 

Because that action created a new administrative remedy for 

Cen to pursue, the District Court lost subject matter 

jurisdiction and Cen’s complaint was voluntarily dismissed.

Cen duly appeared before an immigration judge (IJ) in 

Newark, who determined that Cen was not entitled to relief 

due to the Regulation. Bound by the BIA’s precedential 

opinion in In re Akram, 25 I. & N. Dec. 874 (BIA 2012), the 

IJ concluded that Cen could only seek to adjust through an I130 petition filed by her U.S. stepfather, not her mother, and 

that her stepfather’s petition could not be approved because 

Cen, who was nineteen at the time of the marriage, did not 

qualify as her stepfather’s “child” under § 1101(b)(1)(B).

Cen appealed this decision to the BIA, which affirmed the IJ 
17

and rooted its decision in In re Akram. The BIA determined

(1) that the legislative history and structure of the relevant 

immigration laws supported the Regulation’s requirement that

only the stepparent may file an I-130 petition for a K-4 visa 

holder, (2) that the BIA did not itself have authority to declare 

regulations invalid in any event, and (3) that despite the 

Seventh Circuit having previously rejected In re Akram and

struck down the Regulation, see Akram, 721 F.3d at 864-65, 

the BIA was not bound by that decision outside the Seventh 

Circuit. 

Cen now petitions this Court for review of the BIA’s 

decision, arguing that the Regulation is ultra vires under 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984), and that she therefore should be 

able to adjust her status either by way of an I-130 petition 

filed by her mother or, like her K-2 counterparts, 

automatically upon her mother’s adjustment, i.e., on the basis 

of the marriage itself.

9

 9 In the alternative, Cen argues that the Regulation 

irrationally distinguishes between K-2 and K-4 children in 

violation of her constitutional right to equal protection under 

the law. Because we resolve this case on Chevron grounds, 

we do not reach Cen’s constitutional claim. See, e.g., Lyng v. 

Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 

(1988) (“A fundamental and longstanding principle of judicial 

restraint requires that courts avoid reaching constitutional 

questions in advance of the necessity of deciding them.”); 

accord Akram, 721 F.3d at 858, 865.
18

II. Jurisdiction and Standards of Review

We have jurisdiction to review final decisions of the 

BIA under 8 U.S.C. § 1252. In this case, we review the 

BIA’s decision de novo, subject to the principles of Chevron

deference because we are considering the propriety of a 

regulation that has gone through notice-and-comment 

rulemaking, United States v. Mead Corp., 533 U.S. 218, 226-

27 (2001), and because the BIA’s decision rests on legal 

determinations made in its precedential opinion of In re 

Akram, see INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); 

Orozco-Velasquez v. Att’y Gen., --- F.3d ---, No. 13-1685,

2016 WL 930241, at *2 (3d Cir. Mar. 11, 2016).

10

III. Discussion

Under the familiar two-step Chevron analysis, we first 

determine under Step One if Congress has “directly addressed 

the precise question at issue,” and if so, we strike down a 

regulation that is contrary to Congress’s “unambiguously 

expressed intent.” Chevron, 467 U.S. at 842-43. At Step One, 

we consider the statutory text, as well as “traditional tools of 

statutory construction,” including canons of construction and 

the broader statutory context. Shalom Pentecostal Church v. 

 10 In its brief, the Government references the deference 

courts afford to an agency’s interpretation of its own 

regulations under Auer v. Robbins, 519 U.S. 452, 461 (1997). 

Here, the BIA interpreted the Regulation’s effect in In re 

Akram in a manner that is indeed consistent with the language 

of the Regulation. We address below the underlying question 

whether the Regulation itself is a permissible construction of 

the INA, and we therefore review it through the lens of 

Chevron. 
19

Acting Sec’y U.S. Dep’t of Homeland Sec., 783 F.3d 156, 

164-65 (3d Cir. 2015); United States v. Geiser, 527 F.3d 288, 

292-94 (3d Cir. 2008). If, however, “the statute is silent or 

ambiguous with respect to the specific issue,” we move on to 

Step Two, where “the question for the court is whether the 

agency’s [regulation] is based on a permissible construction 

of the statute.” Chevron, 467 U.S. at 843. At Step Two, we 

may consider “the plain language of the statute, its origin, and 

purpose” in reviewing the reasonableness of a regulation. 

Zheng v. Gonzales, 422 F.3d 98, 119 (3d Cir. 2005) (quoting 

Appalachian States Low-Level Radioactive Waste Comm’n v. 

O’Leary, 93 F.3d 103, 110 (3d Cir. 1996)). Step Two affords 

agencies considerable deference, and “where Congress has 

not merely failed to address a precise question, but has given 

an ‘express delegation of authority to the agency to elucidate 

a specific provision of the statute by regulation,’ then the 

agency’s ‘legislative regulations are given controlling weight 

unless they are arbitrary, capricious, or manifestly contrary to 

the statute.’” Zheng, 422 F.3d at 112 (quoting Chevron, 467 

U.S. at 843-44). But deference under Step Two is not 

absolute, and the regulation must still “harmonize[]” with the 

statute, id. at 119 (quoting O’Leary, 93 F.3d at 110), and be

“reasonable in light of the legislature’s revealed design,”

NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 

513 U.S. 251, 257 (1995). Here, both parties urge that we 

resolve the case at Step One, and there we begin. 

A. The Legitimacy of the Regulation Cannot be 

Resolved at Step One

The Government argues that § 1255(d)’s plain text 

unambiguously evinces Congress’s intent to bar older K-4 

children from eligibility to apply for adjustment of status 

under § 1255(a) because they cannot establish a 
20

§ 1101(b)(1)(B)-compliant relationship with their U.S.

stepparents. Cen urges the opposite reading: that because 

§ 1255(d) authorizes status adjustment “as a result of the 

marriage of” the K-3 parent and U.S. stepparent, all K-4 

children under twenty-one are unambiguously eligible to 

adjust status on the basis of the marriage alone rather than the

parent-child relationship with their stepparents. Were the 

Government correct that the plain language of the INA 

categorically bars older K-4 children from eligibility, we 

would have no need to proceed beyond Step One because the 

Regulation would reflect Congress’s clearly stated intent. As 

explained below, however, we can dispose of this contention 

in short order because the two arguments pressed by the 

Government at Step One are untethered from the text of the 

statute.

First, the Government cherry-picks language from 

§ 1255(d) to urge that its authorization for the Attorney 

General to adjust status on account of “. . . the citizen who 

filed the petition to accord that alien’s nonimmigrant status” 

expressly identifies the U.S. stepparent as the basis for any 

adjustment and amounts to an unambiguous, affirmative 

requirement that a K-4 child prove a legally cognizable 

parent-child relationship with that stepparent to be eligible to 

adjust status under § 1255(a). But, in full, the relevant 

portion of § 1255(d) reads that the Attorney General may 

adjust the status of an alien “as a result of the marriage of the 

nonimmigrant (or, in the case of a minor child, the parent) to 

the citizen who filed the petition to accord that alien’s 

nonimmigrant status under [8 U.S.C. § 1101(a)(15)(K)].” 

8 U.S.C. § 1255(d) (emphasis added). The Government, in 

other words, would have us excise the “as a result of the 

marriage of . . . the parent” language that immediately 
21

precedes the excerpt on which it relies and thereby accord the 

statute an entirely different meaning. We do not pay such 

short shrift to Congress’s words. See, e.g., Inhabitants of 

Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883) (“It is 

the duty of the court to give effect, if possible, to every clause 

and word of a statute[.]”). Instead, the reference to the 

marriage between a K-4 child’s parent and the U.S. stepparent 

precludes reading § 1255(d) to unambiguously require a K-4 

child to prove a parent-child relationship with her stepparent. 

Indeed, not only does the text of § 1255(d) nowhere indicate 

that a parent-child relationship must be proven, but by its 

terms, it expressly predicates a K-4 child’s eligibility on the 

marital relationship between her K-3 parent and U.S. 

stepparent (a topic to which we will return in Part III.B.1 

below).

The Government’s second attempt to anchor the 

Regulation’s requirement in the plain text of the statute fares 

no better. The Government would have us string together a 

series of INA provisions that it insists, when read in tandem,

plainly and unambiguously require a K-4 child to demonstrate 

a parent-child relationship with her U.S. stepparent to be 

eligible to adjust status under § 1255(a). Specifically, the 

Government argues that § 1255(d) does not absolve K-4 

children from satisfying the three adjustment of status 

requirements of § 1255(a); that a K-4 child therefore must 

demonstrate eligibility and availability of an immigrant visa 

like any other alien family member of a U.S. citizen by 

complying with 8 U.S.C. § 1154(a)(1)(A)(i), which provides 

that a U.S. citizen “claiming that an alien is entitled to . . . an 

immediate relative status . . . may file a petition with the 

Attorney General for such classification”; and that the 

Supreme Court’s statement in INS v. Miranda, 459 U.S. 14, 
22

15 & n.2 (1982) (per curiam), that a “visa petition” is 

sufficient to satisfy the § 1255(a)(3) visa availability 

requirement means that an I-130 petition (which, in the case 

of K-4 children, would require compliance with the 

§ 1101(b)(1) definition of “child”) is the proper method of 

satisfying § 1154(a)(1)(A)(i). Ergo, according to the 

Government, § 1255(d) clearly and unambiguously provides

that the filing of an I-130 petition by the K-4 child’s U.S.

stepparent is the exclusive means by which a K-4 child may 

adjust status.

As a threshold matter, we would hesitate to conclude 

that Congress clearly intended to deprive older K-4 children 

of any opportunity to adjust status from within the United 

States when the several disparate sections of the INA that, 

together, supposedly erect this bar lack a single crossreference. See Restrepo v. Att’y Gen., 617 F.3d 787, 792-93 

(3d Cir. 2010) (according significance to the absence of a 

cross-reference when interpreting a statute); United States v. 

Alvarez, 519 F.2d 1036, 1044 (3d Cir. 1975) (same). The 

Government’s premises, in any event, suffer three 

fundamental flaws. 

First, there is no question that, when Congress has not 

provided otherwise, the eligibility of an immediate relative to 

adjust status under § 1255(a) is typically satisfied by the 

filing of an I-130 petition in accordance with 

§ 1154(a)(1)(A)(i). For K-visa holders, however, the 

language of § 1255(d) suggests Congress did provide

otherwise, authorizing these aliens to apply instead on the 

basis of the qualifying marriage. 

Second, the language in § 1154(a)(1)(A)(i) is neither 

mandatory nor exclusive; indeed, while one “may” file an I-
23

130 petition to prove eligibility, that is not the only method of 

adjustment, nor would that be a sensible reading given that 

the 8 C.F.R. § 214.2(k)(6)(ii) gap-filler already allows K-2 

children to adjust under § 1255(a) without filing an I-130 

petition at all. Likewise, INS v. Miranda merely recognized 

that a “visa petition” “would have satisfied” the § 1255(a)(3)

requirement; it did not hold that a visa petition was the 

exclusive means to satisfy § 1255(a). 459 U.S. at 15 & n.2.

Third, even assuming arguendo that a separate I-130 

petition may be required for a K-4 child to adjust status, 

nothing in § 1255(d) or § 1154(a)(1)(A)(i) supports the 

Regulation’s requirement that such a petition be filed by the 

U.S. stepparent and not by the alien parent once he or she has 

obtained lawful permanent residence or, as in this case, 

citizenship status. 

In view of these deficiencies in the Government’s 

plain language argument, we cannot resolve this case at

Chevron Step One. Nor need we linger at Step One on 

account of Cen’s own plain language argument, for even 

assuming that the INA on its face permits older K-4 children 

to apply for adjustment of status under § 1255(d), Congress 

expressly delegated to the Attorney General in § 1255(a) the 

authority to regulate eligibility to apply for adjustment of 

status, and we held in Zheng v. Gonzales that “the text of INA 

section [1255(a)] leaves some ambiguity about whether the 

Attorney General may determine by regulation what classes 

of aliens are eligible to apply for adjustment of status, thus 

precluding reliance on the first prong of the Chevron test.” 

422 F.3d at 120. As in Zheng, the Regulation bars a category 

of aliens from adjusting their status under § 1255(a), and such 

regulations are “subject to review for reasonableness under 

the second prong of the Chevron test.” Id. at 114. We 
24

therefore proceed to Step Two to consider whether the 

Regulation falls within the scope of the Attorney General’s

delegated authority. 11 

 11 Of course, a determination that the language of 

§ 1255(d) is itself ambiguous would be an independent reason 

to proceed to Chevron Step Two. On the one hand, for the 

reasons set forth below, there is a compelling argument that 

the statutory language and structure of the INA clearly and 

unambiguously authorize older K-4 children to apply for 

adjustment of status on the basis of their parent’s marriage 

and without proving an independent parent-child relationship 

with their stepparent. See infra Part III.B.1. On the other 

hand, the Government argues that the interplay of 

§§ 1101(b)(1)(B), 1154(a)(1)(A)(i), 1255(a), and 1255(d) 

makes the statute at worst ambiguous, and, while no party 

here disputes that the term “minor child” in 

§§ 1101(a)(15)(K)(iii) and 1255(d) has the same meaning as 

“child” in § 1101(b)(1), the INA is not explicit on this point. 

We need not decide whether § 1255(d) is itself ambiguous, 

however, because Zheng mandates in any event that we 

review the Regulation at Step Two as an exercise of the 

Attorney General’s delegated authority to regulate eligibility. 

422 F.3d at 119-20. To the extent there is arguably ambiguity 

as to the meaning of “minor child” in § 1255(d), moreover, 

we note that the BIA’s “long-standing interpretation . . . that 

the undefined term ‘minor child’ means a ‘child,’ as defined 

in section [1101](b)(1) of the [INA],” In re Le, 25 I. & N. 

Dec. at 550; see also 8 C.F.R. § 214.2(k)(3), is consistent 

with the language and purpose of the INA as described below 

and therefore is entitled to Chevron deference. Cf. Akram, 

721 F.3d at 856 (implicitly recognizing the reasonableness of 
25

B. The Regulation Is Invalid Under Step Two

In Zheng, we held that where the INA appears by its 

plain terms to render a class of aliens eligible to apply for 

adjustment of status under § 1255(a) and the Attorney 

General by regulation has barred that class from eligibility, 

we review the regulation at Chevron Step Two to “determine 

‘whether the regulation harmonizes with the plain language of 

the statute, its origin, and purpose. So long as the regulation 

bears a fair relationship to the language of the statute, reflects 

the views of those who sought its enactment, and matches the 

purpose they articulated, it will merit deference.’” 422 F.3d 

at 119 (quoting O’Leary, 93 F.3d at 110). That deference, 

however, is not unconditional, for while the Attorney 

General’s discretionary authority under § 1255(a) “may be 

ambiguous enough to allow for some regulatory eligibility 

standards, it does not so totally abdicate authority to the 

Attorney General as to allow a regulation . . . that essentially 

reverses the eligibility structure set out by Congress.” Id. at 

120. 

Here, as in Zheng, we conclude the Regulation does 

reverse Congress’s eligibility structure and must be struck 

down as “manifestly contrary” to the INA. Id. at 112 

(quoting Chevron, 467 U.S. at 844). As explained below, our 

conclusion rests on (1) the plain language of § 1255(d); 

(2) the broader structure of the INA, as informed by canons of 

statutory construction; (3) the regulatory and statutory context 

of the LIFE Act; (4) the congressional purpose behind the 

adjustment of status process; and (5) our own precedent 

 

the BIA’s interpretation of “minor child” by citing to In re Le

for the proposition of defining a “minor child” as a “child” 

under the INA).
26

circumscribing the scope of the Attorney General’s regulatory 

authority under § 1255(a). We address these grounds in turn.

1. Plain Language

While the Government argues that the plain language 

of § 1255(d) imposes the Regulation’s requirement that a 

child prove a parent-child relationship with her U.S. 

stepparent in order to adjust status under § 1255(a), we read 

the statutory text to strongly indicate that Congress intended 

the opposite: that the marriage of the child’s parent to the 

child’s stepparent would itself render her eligible to apply for 

adjustment of status and that the only parent-child 

relationship of relevance to a K-4 child is the one between the 

child and her K-3 alien parent—not her U.S. stepparent. 

By its plain terms, § 1255(d) provides that the 

Attorney General may adjust a K-visa holder’s status “as a 

result of the marriage of the nonimmigrant (or, in the case of 

a minor child, the parent) to the citizen who filed the petition 

to accord that alien’s nonimmigrant status.” 8 U.S.C. 

§ 1255(d). A K-4 child’s eligibility to adjust status thus 

accrues “as a result of the marriage of” her K-3 parent and 

U.S. stepparent, not as a result of the K-4 child’s 

§ 1101(b)(1)(B) relationship with her U.S. stepparent. 

Indeed, the only relationships referenced in the text of 

§ 1255(d) are the marital relationship between the K-3 parent 

and the U.S. stepparent and the parent-child relationship 

between the K-3 parent and the K-4 child; nowhere in 

§ 1255(d) can we identify the source of the Regulation’s 

procedural requirement that a K-4 child be the beneficiary of 

an I-130 petition that proves she is the “child” of her new 

stepparent as defined in § 1101(b)(1)(B). Thus, while the 

Government rests its statutory interpretation of § 1255(d) on 
27

the language referring to “the citizen who filed the [I-129F] 

petition to accord [the K-4 child’s] nonimmigrant status,” see 

supra Part III.A, we read “as a result of the marriage” to be 

the operative words of the statute, making clear that it is the 

marriage between the K-3 parent and the U.S. stepparent that 

renders any K-4 child up to age twenty-one eligible to apply 

for adjustment of status.

12 As such, it would stretch the 

meaning of the text beyond its limits to read the mere mention 

of the U.S. citizen petitioner in § 1255(d) to require that a K-4 

child separately prove she qualifies as the “child” of her 

stepparent under § 1101(b)(1)(B).

13

 12 The language referencing “the citizen who filed the 

petition to accord that alien’s nonimmigrant status” was 

added to § 1255(d) in 1988 during Congress’s attempt to stem 

the tide of marriage fraud. Read in context, this language 

simply forecloses a K-visa holder from adjusting status based 

on a K-1 or K-3 alien’s marriage to a different U.S. citizen 

than the one who filed the I-129F petition on that alien’s 

behalf. In the case of an alien fiancé(e), the statute thus 

would prevent a K-2 child from adjusting status if her parent 

were to marry someone other than the original U.S. citizen 

petitioner, and in the case of an alien spouse, the statute 

would prevent a K-4 child from adjusting status if her K-3 

parent were to divorce, once stateside, from the U.S. citizen 

spouse who initially filed the I-129F petition to accord the K3 and K-4 aliens their nonimmigrant visas and, perhaps, 

remarry a different U.S. citizen.

13 Nor is there a plausible argument that the “parent” 

referenced in the clause “or, in the case of a minor child, the 

parent,” refers to the U.S. stepparent, as a K-4 child’s 
28

Moreover, the Government itself has already rejected 

the very argument it makes here in two different regulations. 

First, in the 8 C.F.R. § 214.2(k)(6)(ii) gap-filler, the 

Government read § 1255(d)—even before it was amended by 

the ITCA—to dispense with any need for the U.S. stepparent 

to file an I-130 petition in order for a K-2 child to be eligible 

to adjust status. And the Government’s continued adherence 

to the gap-filler indicates that it has not departed from that 

reading of § 1255(d) in the years since the ITCA. E.g., Aytes 

Memorandum; see also In re Akram, 25 I. & N. Dec. at 878 & 

n.6 (citing In re Le, 25 I. & N. Dec. at 546 and In re Sesay, 25 

I. & N. Dec. at 438-40). Put another way, the Government’s 

reading of § 1255(d) in this case would seem to render its 

own gap-filling regulation ultra vires because both K-2 and 

K-4 children derive their eligibility to seek status adjustment

under § 1255(a)(2) from the same statutory language in

 

eligibility to adjust status would then accrue “as a result of the 

marriage of the [citizen] to the citizen.” This clearly cannot 

be correct. In contrast, reading § 1255(d) as contemplating a 

parent-child relationship between the K-3 parent and the K-4 

child, rather than between the U.S. stepparent and the K-4 

child, accords with the plain language and regulatory 

interpretations of “minor child” as used in the provision that 

authorizes K-4 visas in the first instance. 8 U.S.C. 

§ 1101(a)(15)(K)(iii) (defining K-2 and K-4 children as “the 

minor child of an alien described in clause (i) or (ii),” which 

are the definitional clauses for K-1 and K-3 alien parents, 

respectively (emphasis added)); see also In re Le, 25 I. & N. 

Dec. at 547-48 (noting “minor child” has been interpreted to 

mean “child” of the alien parent since 1973); 8 C.F.R. 

§ 214.2(k)(3); 66 Fed. Reg., at 42,589.
29

§ 1255(d). We are hard-pressed to see how that plain 

language can be read to require an I-130 petition for a K-4

child, but not for a K-2 child. The Government cannot have it 

both ways.

Second, in defining how K-3 and K-4 aliens may 

adjust status under § 1255(a), 8 C.F.R. § 245.1(c)(6)(ii)

provides that a K-4 child “appl[ies] for adjustment of status 

based upon the marriage of the K-3 spouse to the United 

States citizen who filed a petition on behalf of the K-3 

spouse.” With this language, which is materially identical to 

language in 8 C.F.R. § 245.1(c)(6)(i) (defining eligibility for 

K-1 and K-2 visa holders) and which tracks the statutory text 

of § 1255(d), the Government itself has read a K-4 child’s 

eligibility to apply for adjustment of status to turn on the 

relationship between the K-3 spouse and U.S. citizen—not on

whether the K-4 child meets § 1101(b)(1)(B)’s definition of 

“child” in relation to her new stepparent.

Indeed, tying adjustment to the “petition [filed] on 

behalf of the K-3 spouse,” 8 C.F.R. § 245.1(c)(6)(ii), rather 

than to a second petition filed on behalf of the K-4 child,

makes sense given that a child obtains her K-4 visa as a 

derivative of her K-3 parent, i.e., no separate petition is filed 

in order to afford a K-4 child her initial nonimmigrant visa. 

Obtaining a visa pursuant to § 1101(a)(15)(K) is obviously a 

separate process from adjusting status under § 1255(a). But

because the K-4 visa—like the K-2 visa—is designed to 

reunify families and, ultimately, to serve as a stepping-stone 

toward permanent residence, the most logical reading of the 

statute as a whole is that, whatever paperwork is required 

once stateside, Congress meant to authorize an application for 

adjustment based on the marriage. In the case of a K-2 child, 

that is handled by the filing of an I-485 petition, which 
30

identifies the basis of such child’s eligibility to apply for 

status adjustment as the marriage of her K-1 parent to a U.S.

citizen, requiring only that the child append a copy of the K-1 

parent’s “petition approval notice” and marriage certificate. 

Dep’t of Homeland Sec., Form I-485, Application to Register 

Permanent Residence or Adjust Status (revised Oct. 5, 2015), 

available at https://www.uscis.gov/sites/default/files/files/

form/i-485.pdf (last visited Mar. 22, 2016). The Regulation’s 

requirement that a K-4 child, in contrast, have her U.S.

stepparent file an I-130 on her behalf cannot be reconciled 

with the plain language of § 1255(d) itself nor with the 

Government’s prior interpretations of the very same text as 

embodied in 8 C.F.R. § 214.2(k)(6)(ii) and 8 C.F.R. 

§ 245.1(c)(6)(ii).

2. Canons of Construction

The irreconcilable conflict between the Regulation and 

the statute becomes even more apparent when we consider

§ 1255(d) within the broader framework of the INA. While 

the Government urges that we should interpret 8 U.S.C.

§ 1255 in isolation, we do not approach statutory construction 

as a myopic exercise, but rather as a holistic endeavor in 

which we “interpret the statute ‘as a symmetrical and 

coherent regulatory scheme,’ and ‘fit, if possible, all parts 

into an harmonious whole.’” FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 133 (2000) (first quoting 

Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995); then 

quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 

(1959)); Shalom Pentecostal, 783 F.3d at 164-65 (considering 

the overall design of the INA when assessing the plain 

meaning of a statutory provision under a Chevron Step One 

analysis); Alaka v. Att’y Gen., 456 F.3d 88, 104-05 (3d Cir. 

2006) (considering the overall design of the INA when 
31

interpreting a single provision). We therefore apply this 

“traditional tool[] of statutory construction” to interpret 

§ 1255(d) in its statutory context, see Chevron, 467 U.S. at 

843 n.9; Bautista v. Att’y Gen., 744 F.3d 54, 58 (3d Cir. 

2014), and, in doing so, identify no less than six relevant 

canons of statutory interpretation that support our conclusion.

First, where a statutory provision lists multiple 

categories of individuals without differentiating between 

them, Congress is presumed to have intended that all such 

categories be treated the same. See Clark v. Martinez, 543 

U.S. 371, 377-78 (2005) (concluding that, when a section of 

the INA listed three categories of aliens without 

differentiating between them, the statute clearly expressed

that all categories be treated the same because to treat each 

category differently would “give the[] same words a different 

meaning for each category [and] would be to invent a statute 

rather than interpret one”). Here, Congress authorized both

K-2 and K-4 visas in a single subsection, 8 U.S.C. 

§ 1101(a)(15)(K)(iii), reflecting congressional intent to 

accord the same treatment to the two categories of visa 

holders. The Government urges that § 1101(a)(15)(K) is 

irrelevant to the propriety of the Regulation because it defines 

only the mechanism by which one obtains a K-visa and has 

nothing to do with adjustment of status under § 1255(a) and 

(d). We agree that § 1101(a)(15)(K) on its face does not 

speak to adjustment of status, but Congress’s decision to 

address K-2 and K-4 visas together and without 

differentiation in both § 1101(a)(15)(K)(iii) and § 1255(d) 

provides textual and structural support for according them the 

same treatment for adjustment purposes. See Clark, 543 U.S. 

at 377-78.
32

Second, we “normally” give “identical words and

phrases within the same statute . . . the same meaning,” 

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 

232 (2007), and, here, Congress used the term “minor child” 

in both of the subsections dealing with K-visa holders: 

§ 1101(a)(15)(K)(iii) and § 1255(d). The Government 

nonetheless would have us read “minor child” in 

§ 1101(a)(15)(K)(iii) to mean the child of the K-3 alien parent 

(for purposes of a K-4 child obtaining a K-visa), but then read 

“minor child” in § 1255(d) to mean the child of the U.S. 

stepparent (for purposes of a K-4 child adjusting status—thus 

triggering § 1101(b)(1)(B)’s definition of stepchild for 

adjustment purposes only and justifying the Regulation’s bar 

to status adjustment for children whose parents wed after the 

child turns eighteen). Even putting aside that the Government 

eschews the latter interpretation of this very term in § 1255(d) 

as it relates to K-2 children, there is no textual basis for its

reading of the statute, see supra note 13, nor any indication 

Congress intended to alter whose child a K-4 “minor child” 

must be for purposes of the K-visa versus adjustment of 

status. Rather, the text and this interpretive canon lead us to 

conclude the term should be interpreted the same way in both 

places, covering the § 1101(b)(1) children of the K-3 alien 

parent up to age twenty-one, see supra note 13, both for 

purposes of obtaining a K-4 visa and for adjusting status once 

stateside.

Third, “our duty to construe statutes, not isolated 

provisions,” Gustafson, 513 U.S. at 568, means that 

definitions in other parts of the INA may also shed light on 

what Congress envisioned would be necessary for a K-4 child

to apply to adjust her status. In this case, 8 U.S.C. § 1186a—

the provision explicitly cross-referenced in § 1255(d) that 
33

describes the conditional lawful permanent residence status 

for which K-visa holders apply under § 1255(a) and (d)—

provides further evidence that Congress did not intend to 

require a K-4 child to prove she is the “child” of her U.S. 

stepparent to apply for adjustment of status. Section 

1186a(h)(2) defines the “alien son or daughter” who is subject 

to the strictures of § 1186a as “an alien who obtains the status 

of an alien lawfully admitted for permanent residence . . . by 

virtue of being the son or daughter of an individual through a 

qualifying marriage.” 8 U.S.C. § 1186a(h)(2) (emphasis 

added). The Government’s reading of § 1255(d) would 

require us to interpret the word “individual” in § 1186a(h)(2) 

to refer only to the petitioning U.S. stepparent. But where 

Congress intended to distinguish between the terms “alien 

spouse” and “petitioning spouse,” it did so, as reflected 

elsewhere in § 1186a. See, e.g., id. § 1186a(c)(3)(A)(ii) (“If . 

. . the alien spouse and petitioning spouse appear at the 

interview [to remove the conditional nature of the alien 

spouse’s lawful permanent residence] . . .”); id.

§ 1186a(h)(1), (4) (separately defining “alien spouse” and 

“petitioning spouse,” respectively). Congress opted not to do 

so in defining “alien son or daughter” in § 1186a(h)(2), and, 

as the Supreme Court has said, “[w]here Congress includes 

particular language in one section of a statute but omits it 

from another section of the same Act, it is generally presumed 

that Congress acts intentionally and purposely in the disparate 

inclusion or exclusion,” Russello v. United States, 464 U.S. 

16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 

F.2d 720, 722 (5th Cir. 1972)); see also Shalom Pentecostal, 

783 F.3d at 165. We thus accord significance to Congress’s 

decision to describe an alien son or daughter’s basis for 

admission to legal permanent residence under § 1186a—and, 

by extension, under § 1255(d)—not as her status as the child 
34

of the “petitioning spouse,” but as her status as the son or 

daughter of either parent, so long as it is “through a 

qualifying marriage.” 8 U.S.C. § 1186a(h)(2).

Fourth, we find confirmation of Congress’s intent in

“the title of a statute and the heading of a section,” both of 

which are “‘tools available for the resolution of a doubt’

about the meaning of a statute.” Almendarez-Torres v. United 

States, 523 U.S. 224, 234 (1998) (quoting Bhd. of R.R. 

Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-59 

(1947)). The part of the LIFE Act that created K-4 visas and 

extended § 1255(d) to cover them is entitled “Encouraging 

Immigrant Family Reunification,” Pub. L. No. 106-553, tit. 

XI, 114 Stat. 2762, 2762A-142 (2000) (as amended 2000), 

making apparent that Congress intended K-4 visas to enable 

family reunification for parents and children up to age 

twenty-one who were seeking lawful permanent residence—

not to authorize a temporary visit and concomitant statutory 

bar on the eighteen to twenty-one year olds in that group from

ever adjusting status from within the United States. To 

interpret the LIFE Act to require these children to separate

from their parents and younger siblings in the United States 

and return to their home countries to apply for lawful

permanent residence would hardly “Encourag[e] Immigrant 

Family Reunification”; it would statutorily impede it.

Fifth, we interpret statutes consistent with the canon 

that “Congress . . . does not alter the fundamental details of a 

regulatory scheme in vague terms or ancillary provisions—it 

does not, one might say, hide elephants in mouseholes.” 

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). 

Yet the Government would take us on a circuitous route 

through the INA to explain how § 1255(d) should be read to 

impose—by virtue of stringing together §§ 1255(a), 
35

1154(a)(1)(A)(i), and 1101(b)(1)(B), see supra Part III.A—a

devastating burden on K-4 children that is inconsistent with 

the statutory treatment of, and the agency’s own preexisting 

regulatory framework for, K-2 children. The strictures of 

statutory construction compel us instead to stay on the clear 

path paved by the language of § 1255(d).

Finally, we avoid interpreting statutes in a way that 

would render them absurd. See, e.g., Republic of Iraq v. 

Beaty, 556 U.S. 848, 861 (2009) (discounting a proffered 

statutory interpretation in part because it would have been “an 

absurd reading, not only textually but in the result it 

produces”); Holy Trinity Church v. United States, 143 U.S. 

457, 459-60 (1892) (construing a law “to avoid [] absurdity”). 

Under the current regime, if a nineteen-year-old child of an 

alien spouse stays behind in her home country while her alien

parent moves to the United States and adjusts status, that

child would be eligible to apply for lawful permanent 

residence from abroad, albeit through a long and arduous 

process. The very purpose of K-visas, however, is to allow 

for family reunification stateside pending adjustment of status 

for the alien parent and minor children of the new family. It 

is therefore surely “unreasonable to believe that the 

legislat[ure] intended,” Holy Trinity Church, 143 U.S. at 459,

that, in granting K-4 visas to older alien children, it was, in 

effect, disqualifying any such child who chose to exercise that 

visa from seeking lawful permanent residence from within the 

United States. Indeed, the Government’s reading of 

§ 1255(d) would transform K-4 visas for older K-4 children 

into nothing more than tourist visas, giving their holders only 

a glimpse of what life with their families might have been like 

in America before being sent home because they are legally 
36

incapable of fulfilling § 1255(a)(2)’s eligibility requirement. 

Such a reading defies common sense.

3. Statutory and Regulatory Context 

The regulatory and statutory backdrop to the LIFE Act 

further demonstrates that the Regulation is incompatible with 

Congress’s eligibility scheme, for “Congress is presumed to 

be aware of an administrative or judicial interpretation of a 

statute and to adopt that interpretation when it re-enacts a 

statute without change . . . [or] adopts a new law 

incorporating sections of a prior law, . . . at least insofar as 

[the prior interpretation] affects the new statute.” Lorillard v. 

Pons, 434 U.S. 575, 580-81 (1978) (citations omitted). Here,

before passing the LIFE Act in 2000, Congress was aware

that the INS had promulgated 8 C.F.R. § 214.2(k)(6)(ii) to fill 

the gap for older K-2 children and to ensure they would be 

eligible to apply for adjustment of status on the basis of the 

qualifying marriage, without having to demonstrate a parentchild relationship with their new stepparent. And, of course,

Congress itself had amended § 1255(d) in 1988 to specify that 

K-2 children could apply for status adjustment “as a result of 

the marriage.”14 ITCA § 7(b). Against this backdrop, 

 14 Indeed, there can be no question as to Congress’s 

awareness of the prior existence of 8 C.F.R. § 214.2(k)(6)(ii) 

because the gap-filler not only was on the books for twelve 

years before the LIFE Act, but also was promulgated at the 

same time as the ITCA, which added the “as a result of the 

marriage” language to § 1255(d). The fact that the ITCA was 

moving its way through Congress at the same time the gapfiller was working its way through administrative rulemaking 

indicates that both Congress and the Attorney General were—

even at the time of the gap-filler’s initial promulgation—on 
37

Congress’s re-enactment of this language without alteration 

when it extended § 1255(d) to the newly-created K-3 and K-4 

visa holders indicates it expected K-4 children to likewise 

benefit from the gap-filler. 

The Government counters that Congress also was 

aware of the age restriction for a stepchild to qualify as a 

“child” under § 1101(b)(1) and thus intended the LIFE Act to 

create a gap for older K-4 children. We reject this argument 

for three reasons. First, by adding the “as a result of the 

marriage” language to § 1255(d) in 1988, Congress created an 

alternative basis for eligibility to apply for status adjustment, 

eliminating the need for K-2 and K-4 children to qualify as 

the “child[ren]” of their U.S. stepparents under § 1101(b)(1). 

See supra Part III.B.1. Second, the statutory text makes plain 

that the only adult with whom a K-4 child must have a 

§ 1101(b)(1) parent-child relationship is the K-3 alien parent. 

See id. Third, Lorillard counsels that, while Congress was 

presumptively aware of § 1101(b)(1)’s definition of “child”

when it passed the LIFE Act, it was also presumptively aware 

that the INS had long interpreted “minor child” to mean an 

individual under age twenty-one and already interpreted 

§ 1255(d), through the gap-filler regulation, to relieve K-2 

children of the strictures of § 1101(b)(1) for purposes of 

adjusting status.

15 See 434 U.S. at 580-81. Thus, had

 

notice of each other’s interpretations. See, e.g., Williamson 

Shaft Contracting Co. v. Phillips, 794 F.2d 865, 870 (3d Cir. 

1986) (presuming that Congress was aware of a regulation 

that had been promulgated eight years earlier).

15 Lorillard also further confirms that the term “minor 

child” in § 1255(d) should be understood to mean “child” as 
38

Congress intended to deviate from the gap-filler’s existing 

interpretation, we would expect such deviation to have been 

explicit. See id.

 

defined in § 1101(b)(1). The INS’s 1973 implementing 

regulation for K-visas, 8 C.F.R. § 214.2(k)(3), “incorporated 

the definition of a ‘child’ in [§ 1101(b)(1)],” which defines a 

child as an unmarried person under twenty-one for purposes 

of defining eligibility for a K-2 visa. In re Le, 25 I. & N. 

Dec. at 548 (noting the agency has never defined “minor 

child” but has instead used the statutory definition of “child”); 

see also 66 Fed. Reg. 42,589 (Aug. 14, 2001) (“K-4 aliens 

must be under 21 years of age and unmarried, in order to 

continue to meet the definition of ‘child’ under section 

[1101(b)(1)].”); Aytes Memorandum (“Officers should NOT

limit the adjustment of status of K-2 aliens to persons under 

the age of 18 based on the term ‘minor child’ as it appears in 

[1255(d)]. The INA does not define the term ‘minor child.’ 

Section [1101](b)(1) defines the term ‘child’ as ‘an unmarried 

person under twenty-one years of age.’”). Against the 

backdrop of the Government’s consistent “treat[ment] [of] the 

term ‘minor child’ as synonymous with the term ‘child,’” 

Congress re-enacted 8 U.S.C. § 1101(a)(15)(K) and “carried 

the term ‘minor child’ over into [§ 1255(d)]” in 1986. In re 

Le, 25 I. & N. Dec. at 548. Under Lorillard, we presume that, 

in including the same term in § 1255(d) in both the ITCA and, 

twelve years later, the LIFE Act, Congress was aware of and 

acquiesced to this definition. 434 U.S. at 580-81. 
39

4. Congressional Purpose

Setting aside the text, structure, and history of the 

INA, the Government contends the Regulation is a reasonable 

exercise of the Attorney General’s regulatory authority 

because it furthers Congress’s intent to combat marriage 

fraud. According to the Government, there is a greater risk 

that K-3 and K-4 aliens will fraudulently obtain lawful 

permanent residence than their K-1 and K-2 counterparts 

because the marriages take place on foreign soil and because 

alien spouses are subject to fewer prophylactic fraud 

prevention measures than alien fiancé(e)s.16 While the 

Government’s interest in combatting marriage fraud is 

indisputably a valid one, the Government fails to explain how 

the Regulation furthers this goal and thus cannot justify the 

Regulation on this basis.

 16 Specifically, the Government places significance on 

the fact that fiancé(e)s undergo scrutiny of their intent to 

marry before being admitted to the United States (i.e., in the 

I-129F petition, upon applying for a K-1 visa, and before 

entry to the United States) and that they must establish their 

marriage is legitimate at the time of adjustment under § 1255, 

and again later when seeking to lift the conditional status 

conferred under § 1186a. See, e.g., In re Sesay, 25 I. & N. 

Dec. at 442. It is unclear to us how these examples show any 

marked difference with alien spouses, who also must aver to 

their marriage on the I-129F petition and again during the 

interview that accompanies their application and must 

demonstrate a valid marriage both upon initial adjustment of 

status (via an I-130 petition) and when being interviewed to 

lift the § 1186a conditions on such status.
40

First, the INA already provides the Government with 

several means of combatting marriage fraud. A K-3 parent 

must have her initial visa petition—which includes proof of a 

valid marriage—approved before she and her children may 

even enter the United States, and the lawful permanent 

resident status that K-3 and K-4 aliens obtain thereafter is 

conditional under § 1186a. See supra Part I.A. This 

conditional status remains in place until the married couple 

jointly files to lift this designation in the ninety-day window 

preceding the second anniversary of obtaining conditional 

legal status. See 8 U.S.C. § 1186a(c)(1)(A), (c)(3)(B), 

(d)(2)(A). Only if, after an interview with the couple, the 

Government concludes that the marriage is not fraudulent 

does the alien’s status and that of her children become truly 

permanent. See id. § 1186a(c)(1)(B), (c)(3). On the other 

hand, if at any time during this two-year period the 

Government concludes the marriage was fraudulent or has 

been annulled or terminated, the alien’s permanent resident 

status is rescinded and she and, by extension, her children are 

rendered removable. See id. §§ 1186a(b)(1), (c)(3)(C); 

1227(a)(1)(D)(i). This temporary, conditional status thus 

provides the Government with a backstop to prevent 

fraudulent marriages from resulting in permanent legal status 

and an additional mechanism to catch fraud that may have 

slipped through an initial review. Accord Gallimore v. Att’y 

Gen., 619 F.3d 216, 222 (3d Cir. 2010) (“The purpose of [the 

§ 1186a] scheme is obvious: to ferret out sham marriages 

entered into for the purpose of obtaining entry into the United 

States.”).

Second, and more fundamentally, the Government has 

failed to explain why a regulation that targets the children—

and more precisely, the older children—of alien spouses in 
41

any way advances the underlying effort to combat marriage 

fraud. That goal may be served by careful scrutiny of the K-3 

parent’s I-129F and I-130 petitions and the documentation 

required at the visa interview to prove both the K-3 parent’s 

relationship with the U.S. citizen-spouse and the children’s 

relationship with their K-3 parent, but the Government has 

not shown how it is served by requiring a second I-130 

petition on behalf of a K-4 child. Indeed, the Government 

candidly conceded at oral argument that the Regulation’s 

effect of forcing older K-4 children back overseas does not 

prevent marriage fraud. Oral Arg. at 31:40-32:10.17 

The stated goal of combatting marriage fraud thus 

cannot explain the Regulation’s differential treatment of K-2 

and K-4 children or why the Government should, in effect, 

accord less value to the dignity and integrity of a family unit 

when a U.S. citizen is already married to an alien spouse than 

when an alien is entering the United States with the stated 

intention of marrying a U.S. citizen. In short, the 

Government has failed to show the Regulation is “based on a 

permissible construction of the statute,” Zheng, 422 F.3d at 

116 (quoting Chevron, 467 U.S. at 843), or “comport[s] with 

Congress’s stated intent,” id. at 119, to combat marriage 

fraud.

 17 An audio recording of the oral argument is available 

online, at http://www2.ca3.uscourts.gov/oralargument/audio/

14-4831Cenv.AttyGenUSA.mp3.
42

5. Limits on the Attorney General’s Regulatory 

Authority

Finally, the considerations that led us in Zheng to hold 

that the regulation in that case exceeded the permissible scope 

of the Attorney General’s regulatory authority under 

§ 1255(a) compel the same conclusion here. Zheng instructed

that we pay heed to “our obligation to respect the decisions of 

the immigration agencies” but recognized our “even higher 

obligation to respect the clearly expressed will of Congress.” 

422 F.3d at 120. And while acknowledging the Attorney 

General’s authority under § 1255(a) to regulate eligibility to 

apply for adjustment of status, Zheng demarcated the bounds 

of that authority: Where Congress has made clear through the 

statutory language, structure, history, and purpose its intent to

authorize a certain class of aliens to apply for adjustment of 

status, a regulation that strips such aliens of eligibility 

altogether cannot be deemed “reasonable in light of the 

legislature’s revealed design.” Id. at 116 (quoting 

NationsBank, 513 U.S. at 257); see id. at 119-20.

Here, the Attorney General overstepped those bounds. 

Whereas Congress envisioned that an alien spouse and her K4 children up to age twenty-one could enter the United States

and live as a family with the U.S. spouse while applying for 

adjustment of status, the Regulation makes it legally 

impossible for an older K-4 child to apply at all, so long as 

she remains part of the family unit. And whereas, by enacting 

§ 1255(d), Congress closed a gap that would have forced such 

children to return to their home countries if they had passed 

their eighteenth birthday by the date of their parent’s 

marriage, the Regulation “essentially reverses the eligibility 

structure set out by Congress,” id. at 120, by reopening that

gap and thereby categorically barring the otherwise eligible 
43

class of older K-4 children from applying for adjustment

within the United States. Thus, as in Zheng, the Regulation

cannot be “harmonize[d] with the plain language of the 

[INA], its origin, and purpose,” id. at 119 (quoting O’Leary, 

93 F.3d at 110), and cannot survive scrutiny under Chevron 

Step Two.18

IV. Conclusion

While the nation’s immigration laws are at times 

labyrinthine, we decline to hold today that they offer older K4 children nothing more than a legal dead end. For the 

aforementioned reasons, although we reach our decision at 

Chevron Step Two rather than Step One, we ultimately agree 

with the thoughtful decision of the Seventh Circuit in Akram

and likewise hold that 8 C.F.R. § 245.1(i) is invalid. 

Accordingly, we will grant Cen’s petition for review, reverse 

 18 We leave to the Department of Homeland Security 

and the Attorney General, pursuant to her regulatory 

authority, the appropriate mechanism to resolve this problem, 

whether through providing a basis for eligibility analogous to 

what now exists for K-2 children under the 8 C.F.R. 

§ 214.2(k)(6)(ii) gap-filler (as effectuated by the I-485 

petition) or otherwise. We note, however, that should the 

Government decline to promulgate a regulation mirroring 8 

C.F.R. § 214.2(k)(6)(ii) and instead simply allow a K-4 child 

to adjust on the basis of an I-130 petition filed by her K-3 

parent once that parent obtains lawful permanent residence, 

the strictures of § 1255(a) would still require that K-4 child 

prove the immediate availability of a country-specific visa, 

see 8 U.S.C. § 1153(a)(2), thus denying her the same benefits 

enjoyed under the gap-filler by her K-2 counterparts.
44

the Board’s decision, and remand Cen’s case for proceedings 

consistent with this opinion.