In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3008

MAHVASH AKRAM,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of 

the Board of Immigration Appeals.

No. A096 769 035

ARGUED APRIL 1, 2013—DECIDED JULY 9, 2013

Before BAUER, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge. The Immigration and Nationality

Act (“INA”), Pub. L. 82-414, 66 Stat. 163, as amended,

8 U.S.C. § 1101 et seq., is a bit of a beast. It is not known

for being warm or cuddly; words like “intricate” and

“Byzantine” come more readily to mind. Zeqiri v. Mukasey,

529 F.3d 364, 370 (7th Cir. 2008). Nor is it known for

being easy to understand; we have often remarked on its
2 No. 12-3008

fiendish complexity. See, e.g., O’Sullivan v. USCIS, 453

F.3d 809, 812 (7th Cir. 2006); Muhur v. Ashcroft, 382 F.3d

653, 656 (7th Cir. 2004); Asani v. INS, 154 F.3d 719, 727 (7th

Cir. 1998). But even the INA has room for a human

touch: it has the potential to bring families together to

share in the American dream.

This case demonstrates both the INA’s tangled construction and its tender heart. Mahvash Alisha Akram

came to this country in 2006. She hoped to join her

recently remarried mother and become a lawful

permanent resident. Her hopes were dashed when she

ran headlong into a regulatory wall. She now argues

that the regulation that thwarted her cannot stand.

Because we find that the regulation at issue directly

conflicts with the will of Congress, we agree with Akram

and grant her petition for review.

I. BACKGROUND

The INA gives special immigration preferences to

aliens with relatives in the United States. See, e.g., 8 U.S.C.

§§ 1151-1154. These preferences allow aliens to rejoin

their families in the United States by making them

eligible for permanent immigrant visas. Unfortunately, it

sometimes takes months or years for permanent immigrant visas to be processed. See, e.g., U.S. Dep’t of State,

Bureau of Consular Affairs, Family-based Immigrant Visas,

http://travel.state.gov/visa/immigrants/types/types_

1306.html (last visited July 1, 2013); U.S. Dep’t of State,

Bureau of Consular Affairs, Immigrant Visa for a Spouse of
No. 12-3008 3

a U.S. Citizen (IR1 or CR1), http://travel.state.gov/visa/

immigrants/types/types_2991.html (last visited July 1,

2013). That delay means that people applying for visas

to join their families in the United States generally

must spend long periods waiting outside the United

States for their visa applications to be processed.

This wait can be particularly hard on people who are

separated from their spouses and children. Congress

responded to this problem in two ways. The first is 8

U.S.C. § 1101(a)(15)(K), which gives short-term, nonimmigrant visas to the spouses and fiance(e)s of U.S.

citizens, as well as to the children of those spouses and

fiance(e)s. It is apparently much faster to issue a nonimmigrant visa than it is to issue a permanent immigrant

visa. A short-term, non-immigrant visa therefore allows

an alien to enter the United States faster than she

would otherwise be able.

Section 1101(a)(15)(K) makes an alien eligible for a nonimmigrant visa if he or she:

(i) is the fiancee or fiance of a citizen of the United

States . . . and who seeks to enter the United

States solely to conclude a valid marriage with the

petitioner within ninety days after admission;

(ii) has concluded a valid marriage with a citizen

of the United States . . . who is the petitioner, is

the beneficiary of a petition to accord a status

under section 1151(b)(2)(A)(I) of this title that

was filed under section 1154 of this title by the

petitioner, and seeks to enter the United States to
4 No. 12-3008

await the approval of such petition and the availability to the alien of an immigrant visa; or

(iii) is the minor child of an alien described in

clause (i) or (ii) and is accompanying, or following

to join, the alien[.] 

Id. These temporary, non-immigrant visas are called

“K visas.” There are four categories: 

• K-1: fiance(e)s of United States citizens; 

• K-2: minor children of K-1s; 

• K-3: spouses of United States citizens; 

• K-4: minor children of K-3s.

In re Sesay, 25 I. & N. Dec. 431, 433 n.3 (BIA 2011) (citing

8 C.F.R. § 214.1(a)(1)(v), (a)(2)). The last two, K-3 and

K-4 visas, are particularly relevant here.

Congress’s second response to the problem of separation of spouses and children is 8 U.S.C. § 1255. That

section gives the Attorney General the power to “adjust”

the status of an alien already present in the United States

from non-immigrant status to immigrant status without

the alien having to return to his or her home country. See

8 U.S.C. § 1255(a); Benslimane v. Gonzales, 430 F.3d 828, 832-

33 (7th Cir. 2005); Succar v. Ashcroft, 394 F.3d 8, 22 (1st

Cir. 2005). Taken together with the K visa system, adjustment of status allows an alien spouse, fiance(e), or

child to enter the United States temporarily while her

permanent visa is being processed. Once the alien’s

application for a permanent visa is complete, the

alien may change her status from non-immigrant to
No. 12-3008 5

immigrant without having to leave the country first. In

short, K visas and adjustment of status allow aliens to

wait out the procedural slog with their families in the

United States.

Petitioner Mahvash Alisha Akram is a citizen of

Pakistan, as are her mother and her younger sister.

Akram’s mother married Farhan Siddique, a United

States citizen, outside the United States on July 4, 2005.

Akram was eighteen years old at the time. After the

marriage, Siddique wanted to move his new wife and

stepchildren to the United States as permanent immigrants. Accordingly, Siddique requested K visas so his

family could wait for their permanent visas in the

United States instead of Pakistan. He also started the

ball rolling on obtaining permanent visas for his

family by filing alien relative petitions on their behalf.

These petitions—called “I-130 petitions”—establish

a formal family relationship to a U.S. citizen or a lawful

permanent resident. Thus, Siddique’s I-130 petition

would, if granted, establish a formal relationship

between Siddique and his new family members in the

eyes of the U.S. government. 8 C.F.R. § 204.1(a)(1). That

relationship, in turn, would make his family eligible

for immigrant visas as “immediate relatives” of a

U.S. citizen. 8 U.S.C. § 1151(b)(2)(A)(i).

Akram’s mother duly received a K-3 visa, and her I-130

petition was granted at a later date. Akram’s younger

sister received a K-4 visa and also had her I-130 petition granted. Akram, however, found herself in a

strange situation—her request for a K visa was granted,

but her I-130 petition was denied.
6 No. 12-3008

This odd outcome arose from Akram’s age. As discussed, an alien is eligible for a K-4 visa if she is the

“minor child” of a K-3 visa-holder and is “accompanying,

or following to join,” the K-3. 8 U.S.C. § 1101(a)(15)(K)(iii).

For K-visa purposes, the term “minor child” means an

unmarried son or daughter who is under twenty-one

years old. See 8 U.S.C. § 1101(b)(1) (defining “child”);

In re Le, 25 I. & N. Dec. 541, 550 (BIA 2011) (applying

definition of “child” in 8 U.S.C. § 1101(b)(1) to the

term “minor child” under § 1101(a)(15)(K)(iii)); accord

Carpio v. Holder, 592 F.3d 1091, 1098 (10th Cir. 2010).

Akram was eighteen years old and unmarried when her

mother received a K-3 visa. Accordingly, Akram was

eligible for a K-4 visa as her mother’s “minor child,”

8 U.S.C. § 1101(a)(15)(K)(iii), and Akram received her

visa on February 28, 2006.

Now here is the strange part: although Akram was

her mother’s “minor child” for K-visa purposes, she was

not Siddique’s “child” for I-130 purposes. The reason is

that Akram is Siddique’s stepdaughter, not his biological

daughter. A stepchild qualifies as a “child” for immigration purposes only if she “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).

Because Akram was already eighteen when her

mother married Siddique, she was too old to be his

“child,” even though she was still her mother’s “minor

child.” As a result, Akram could not show a family relationship with Siddique, and the I-130 petition that

Siddique filed on her behalf was denied on January 23,

2006.
No. 12-3008 7

Akram accordingly received permission to be in

the United States, but only temporarily, until March 21,

2007, as a K-4 visa-holder. Akram moved to the

United States to join her mother and applied to adjust

her status and become a lawful permanent resident. Her

application was denied—because no I-130 petition

had been granted on Akram’s behalf, she was not

eligible to become a permanent immigrant as the

relative of a U.S. citizen (i.e., Siddique). In the meantime,

Akram’s mother became a lawful permanent resident

and filed her own I-130 alien relative petition on

Akram’s behalf on June 24, 2008. See 8 U.S.C. § 1153(a)(2)

(providing visa eligibility for “unmarried sons and unmarried daughters of permanent resident aliens”). So far as

we know, that petition and its related paperwork are

still working their way through the system. Nevertheless, Akram’s mother’s petition is important, and we

will return to it later in our opinion.

Akram remained in the United States after her K-4 visa

expired, and removal proceedings against her began on

April 17, 2009. Akram conceded removability but argued

that she should be able to stay and adjust her status.

In support, Akram pointed to the differences between

how the children of fiance(e)s (K-2s) and the children of

spouses (K-4s) become permanent residents. Under

current regulations, K-2s need not separately apply for

permanent immigrant visas. After she has received a K-2

visa, a K-2 may adjust status and become a permanent

resident as soon as her parent’s marriage is complete;

she does not need to file an I-130 immediate relative petition. See 8 C.F.R. § 214.2(k)(6)(ii); cf. Sesay, 25 I. & N. Dec.
8 No. 12-3008

1 Note, however that 8 C.F.R. § 245.1(i) does not prevent Akram

from ever obtaining an immigrant visa. As the government

explains, “Akram should be able to immigrate to the United

States through the I-130 petition filed by her mother, assuming

that she is otherwise admissible.” (Appellee’s Br. at 50 n.12.)

Instead, 8 C.F.R. § 245.1(i), prevents Akram from adjusting

status. In other words, it requires her to leave the United

States and wait (perhaps for years) for processing in her

home country before receiving an immigrant visa.

at 439 (“there is no requirement for a Form I-130 immigrant visa petition to be filed . . . for the fiancé(e)”). K-4s,

on the other hand, must pass through a much narrower visa petitioning process. Under current regulations, the only way that a K-4 can adjust her status to

that of a permanent immigrant is by filing an I-130

petition and thereby showing that she is the “spouse or

child of the U.S. citizen who originally filed the petition

for that alien’s K-3/K-4 status.” 8 C.F.R. § 245.1(i).1

That is a lot to wrap your head around, so we will

illustrate the difference. Akram’s mother married Siddique

abroad. Thus, Akram’s mother received a K-3 visa, and

Akram received a K-4 visa. Akram now wants to adjust

status and become a lawful permanent resident because

she has immediate relatives in the United States. But

Siddique cannot serve as that relative because Akram is

not Siddique’s “child.” 8 U.S.C. § 1101(b)(1)(B). Nor

can someone else (like Akram’s mother, for instance)

serve as that relative. That is because, under 8 C.F.R.

§ 245.1(i), the only way that a K-4 may adjust status is

if the sponsoring citizen (i.e., Siddique) successfully filed
No. 12-3008 9

an I-130 petition on the K-4’s behalf. As a result, it

is impossible for Akram to adjust her status from that of

a K-4 to that of a lawful permanent resident.

Now suppose that, instead of marrying Siddique

abroad, Akram’s mother decided to marry Siddique in

the United States. Instead of receiving a K-3 visa, Akram’s

mother would have received a K-1 fiancee visa. And

instead of receiving a K-4 visa, Akram would have

received a K-2 visa. After the marriage, there would

have been no need for Akram to show that Siddique—or

anyone else—was her relative. Akram would have been

able to adjust her status immediately. See 8 C.F.R.

§ 214.2(k)(6)(ii); see also Kondrachuk v. USCIS, No. C 08-5476

CW, 2009 WL 1883720, at *2 (N.D. Cal. June 30, 2009)

(explaining immediate adjustment of status under

8 C.F.R. § 214.2(k)(6)(ii)). In this alternate universe, Akram would, in all likelihood, already be a

lawful permanent resident. This stark difference in outcomes, Akram argued, is irrational, contrary to statute,

and unconstitutional.

The Immigration Judge (“IJ”) held that Akram could

not adjust status through Siddique because she is not

his “child.” The IJ also held that 8 C.F.R. § 245.1(i) bars

Akram from adjusting status by any means other than

through Siddique and that the IJ lacked jurisdiction to

declare 8 C.F.R. § 245.1(I) unconstitutional or contrary

to statute. The IJ therefore found Akram ineligible to

adjust her status and granted her voluntary departure

in lieu of removal. See 8 U.S.C. § 1229c.

Akram appealed to the Board of Immigration Appeals

(“BIA”). Like the IJ, the BIA concluded that Akram
10 No. 12-3008

Akram also challenges an identical regulatory provision at 2

8 C.F.R. § 1245.1(i). For simplicity’s sake, we will use “8

C.F.R. § 245.1(i)” to refer to both provisions.

could not adjust status as Siddique’s “child” and that it

lacked the authority to declare 8 C.F.R. § 245.1(i) unconstitutional or ultra vires. See In re Akram, 25 I. & N. Dec. 874,

880 (BIA 2012). The BIA also denied Akram’s motion

to remand the case to allow her to adjust status as a

relative of her mother, who by that time had become

a lawful permanent resident. Id. at 882. The BIA

reasoned that Akram could not adjust status through

her mother because 8 C.F.R. § 245.1(i) barred Akram

from adjusting status on any basis other by a relationship to Siddique. Akram, 25 I. & N. Dec. at 882. Akram

now petitions for review, arguing, once again, that

8 C.F.R. § 245.1(i) is unconstitutional and contrary to

the will of Congress.

2

II. ANALYSIS

Under current regulations, Akram cannot adjust status

“in any way other than as a spouse or child of the

U.S. citizen who originally filed the petition for that

alien’s K-3/K-4 status.” 8 C.F.R. § 245.1(i). Siddique was

the U.S. citizen who originally filed the petition for

Akram’s K-4 status. But, as discussed, Akram does

not qualify as Siddique’s “child” because she was eighteen when Siddique married her mother. 8 U.S.C.

§ 1101(b)(1)(B). Accordingly, she cannot adjust status as

Siddique’s child. And, because 8 C.F.R. § 245.1(i) bars
No. 12-3008 11

her from adjusting status in any other way, the BIA

held that Akram cannot adjust status at all.

Akram attacks this holding on two fronts. First, she

argues that 8 C.F.R. § 245.1(i) is contrary to statute. As

a result, Akram says that she should be able to adjust

status without benefitting from an I-130 petition, or,

alternatively, by having her mother, who is now a lawful

permanent resident, file an I-130 petition on Akram’s

behalf. Second, Akram argues that, even if 8 C.F.R.

§ 245.1(i) is statutorily permissible, it is nevertheless so

irrational that it violates the Fourteenth Amendment’s

Equal Protection Clause. Judicial restraint requires us

to avoid addressing constitutional questions where possible, see Camreta v. Greene, 131 S. Ct. 2020, 2031 (2011),

so we will take up the statutory question first.

Akram challenges both an administrative regulation

that has gone through notice-and-comment rulemaking

and a precedential BIA opinion. As a result, we review

her challenge through the lens of Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44

(1984). See United States v. Mead Corp., 533 U.S. 218, 226-27

(2001) (rules promulgated through notice-and-comment

rulemaking entitled to Chevron deference); Escobar v.

Holder, 657 F.3d 537, 542 (7th Cir. 2011) (precedential BIA

opinions interpreting governing legal standards entitled

to Chevron deference). Our first task is to determine

“whether Congress has directly spoken to the precise

question at issue.” Chevron, 467 U.S. at 842. “The judiciary

is the final authority on issues of statutory construction

and must reject administrative constructions which are
12 No. 12-3008

contrary to clear congressional intent.” Id. at 843 n.9.

Thus, “[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is

the law and must be given effect.” Id.; accord City of

Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013). If, on the

other hand, the statute is ambiguous, then we “must

defer to an agency’s reasonable interpretation of the

statute.” Sarmiento v. Holder, 680 F.3d 799, 802 (7th Cir.

2012) (citing Chevron, 467 U.S. at 842-44); accord Arlington,

133 S. Ct. at 1868.

We do not think that 8 C.F.R. § 245.1(i) can be squared

with the will of Congress. Several statutes are relevant

here, but the most important is 8 U.S.C. § 1101(a)(15)(K),

which created the K visa category. As we have already

discussed, this statute provides that an alien is eligible

for a non-immigrant visa if he or she:

(i) is the fiancee or fiance of a citizen of the

United States . . . and who seeks to enter the

United States solely to conclude a valid marriage with the petitioner within ninety days

after admission;

(ii) has concluded a valid marriage with a citizen

of the United States . . . who is the petitioner, is

the beneficiary of a petition to accord a status [as

an immediate relative], and seeks to enter the

United States to await the approval of such petition and the availability to the alien of an immigrant visa; or
No. 12-3008 13

(iii) is the minor child of an alien described in

[clause (ii)] and is accompanying, or following

to join, the alien[.]

Id.

It is not hard to see what Congress was aiming for. The

purpose of a K visa is to allow fiance(e)s, spouses, and

children of citizens to enter the United States temporarily

while awaiting permanent visas. Subsection (ii), for

instance, conditions availability of a K-3 visa on the

need for the applicant to await “the availability . . . of an

immigrant visa.” Id. Subsection (iii) uses different language, but it achieves the same result. It conditions the

availability of a K-4 visa on the child’s desire to “accompany[], or follow[] to join” their parent. The most

natural reading of this language is that the K-4 will join

his or her parent permanently. Indeed, the BIA held as

much in this very case; it stated that the purpose of all

K visas is to “to confer nonimmigrant status to aliens

who [are] awaiting the availability of an immigrant

visa.” Akram, 25 I. & N. Dec. at 879 (internal quotation

marks omitted).

That does not mean that all K visa recipients will someday become lawful permanent residents, of course. A

K-3 visa lasts long enough to allow “the approval of” an

I-130 petition to accord status as a spouse. 8 U.S.C.

§ 1101(a)(15)(K)(ii). If the I-130 petition were denied

(because the marriage was a sham, for instance), then

the K-3 visa would terminate without the K-3 becoming

a lawful permanent resident. In such a case, the K-4’s

derivative visa would expire as well because there
14 No. 12-3008

would be nobody left for the K-4 to “follow[] to join.”

8 U.S.C. § 1101(a)(15)(K)(iii).

But, under normal circumstances, a K-4 visa-holder

will become a lawful permanent resident. Nothing in

the statute suggests that Congress intended for K-4s

like Akram to come to the United States as mere

temporary visitors. Indeed, the fact that Congress

created separate provisions for temporary visitors, see

8 U.S.C. § 1101(a)(15)(B), suggests precisely the opposite.

So to review, the text and structure of § 1101(a)(15)(K)(iii)

suggest that Congress intended K-4s to enter the

United States and then later adjust status to become

lawful permanent residents. As discussed, Akram wants

to do exactly that. By requiring Akram to adjust only

by way of Siddique, 8 C.F.R. § 245.1(i) frustrates that

goal. Accordingly, 8 C.F.R. § 245.1(i)’s limitations on

K visas find no support in subsection K itself.

The question, then, is whether some other statutory provision supports 8 C.F.R. § 245.1(i)’s requirement that K-4s adjust status only by way of the U.S.

citizen who petitioned for their K visa. The government

claims that several statutes support this requirement.

It begins with 8 U.S.C. § 1255(d), which provides that

a K visa-holder may only adjust 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

under section 1101(a)(15)(K) of this title.” 8 U.S.C.

§ 1255(d). The similarity between this provision and

8 C.F.R. § 245.1(i) is obvious — recall that 8 C.F.R. § 245.1(i)

provides that a K-3 or K-4 cannot adjust status “in any
No. 12-3008 15

way other than as a spouse or child of the U.S. citizen

who originally filed the petition for that alien’s K-3/K-4

status.” Latching on to what it describes as the “plain”

statutory language, the government argues 8 U.S.C.

§ 1255(d) and 8 C.F.R. § 245.1(i) are essentially identical.

Thus, the government concludes that 8 U.S.C. § 1255(d)

supports 8 C.F.R. § 245.1(i)’s restrictions.

But § 1255(d) does not support the government’s

reading. Nothing in § 1255(d) requires K-4s to adjust

status “as a . . . child of the U.S. citizen who originally

filed the petition.” 8 C.F.R. § 245.1(i). To the contrary,

§ 1255(d) requires K-4s to adjust status “as a result of the

marriage of . . . the parent . . . to the citizen.” 8 U.S.C.

§ 1255(d) (emphasis added). In other words, it is the

marriage, not the relationship to the U.S. citizen, that

defines the statutory limitation. See Choin v. Mukasey, 537

F.3d 1116, 1119 n.4 (9th Cir. 2008) (“There is no

question that the plain language of the statute bars K

visaholders from adjusting to permanent resident status

on any basis other than the marriage to the citizen who

petitioned on their behalf.”) (emphasis added); cf.

Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007)

(“On its face, subsection (d) prohibits an alien who

arrived on the K-1 fiancé visa from adjusting his status

on any basis whatever save for the marriage to the K-1

visa sponsor.”) (emphasis added).

This textual difference is crucial. Section 1255(d) unquestionably bars K visa-holders from adjusting status for

reasons unrelated to the marriage that precipitated the

visa. Thus, a K-1 who enters the United States as the

fiancee of one man cannot adjust status through a mar-
16 No. 12-3008

Seeking a visa through her mother would be possible,

3

although it would likely involve a longer wait. Federal statute

provides that an alien may adjust status only if there is a visa

“immediately available” for her. 8 U.S.C. § 1255(a). Unlike

visas for children of U.S. citizens, see 8 U.S.C. § 1151(b)(2)(A)(1),

visas for the children of lawful permanent residents are

subject to yearly numerical caps, see 8 U.S.C. § 1153(a)(2). As a

result, visas are not always “immediately available,” 8 U.S.C.

§ 1255(a), for children of lawful permanent residents. Instead,

a child seeking a visa through her lawful permanent immigrant parent generally must wait in line (metaphorically,

at least) for a visa to become available. See USCIS, Visa Availability & Priority Dates, http://www.uscis.gov/portal/site/uscis/

menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=

(continued...)

riage to another man. Birdsong v. Holder, 641 F.3d 957, 957-

58, 960-61 (8th Cir. 2011). Similarly, a K-4 who enters to

join her parent cannot adjust status by way of her own

marriage to a U.S. citizen. In re Valenzuela, 25 I. & N. Dec.

867, 868-71 (BIA 2012). Attempts to adjust status under

these circumstances squarely conflict with the requirement that K visa-holders adjust status “as a result of

the marriage” that formed the basis for the K visa.

8 U.S.C. § 1255(d).

But that is not what Akram wants to do. She wants

to “follow[] to join” her mother, as 8 U.S.C.

§ 1101(a)(15)(K)(iii) provides. And she wants to adjust

her status either (1) like a K-2, as a direct result of her

mother’s marriage; or (2) through her mother, who

became a permanent resident as a direct result of her

marriage to Siddique. Either of these mechanisms 3
No. 12-3008 17

(...continued)

aa290a5659083210VgnVCM100000082ca60aRCRD&vgnextoid=

aa290a5659083210VgnVCM100000082ca60aRCRD (last visited

July 1, 2013). But this fact does not necessarily prevent Akram

from adjusting status via her lawful permanent resident

mother. Consistent with the underlying purpose of the K visa

system, the government could allow Akram to remain in the

United States on a K-4 visa until she reaches the front of the

line and an immigrant visa becomes “immediately available”

to her by way of her mother.

would be a “as a result of the marriage of” Akram’s

mother to Siddique. 8 U.S.C. § 1255(d). Contrary to the

government’s argument, § 1255(d)’s text is entirely consistent with allowing Akram to adjust status in the

ways she proposes. Under § 1255(d)’s plain language, it

is the K-3’s marriage, not the K-4’s relationship to the

petitioning citizen, that matters.

Other portions of the INA support this plain-language

reading. Consider 8 U.S.C. § 1186a, which places conditions on permanent residence for K visa immigrants. See

Carpio, 592 F.3d at 1098-1100 (interpreting § 1255 in light

of § 1186a). Like § 1255(d), § 1186a defines a K-3 “alien

spouse” in terms of a relationship to a U.S. citizen or

permanent resident. See 8 U.S.C. § 1186a(h)(1)(A) (“spouse

of a citizen of the United States”); 8 U.S.C. § 1186a(h)(1)(B)

(“fiancee or fiance of a citizen of the United States”);

8 U.S.C. § 1186a(h)(1)(C) (“spouse of an alien lawfully

admitted for permanent residence”). But, also like

§ 1255(d), § 1186a refers to K-4 children in terms of

their parent’s marriage—8 U.S.C. § 1186a(h)(2) defines

an “alien son or daughter,” in part, as “an alien
18 No. 12-3008

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.”

Id. (emphasis added).

Two parts of this text stand out. The first is the use of

the term “individual.” Id. That word contrasts with the

words that § 1186a uses to refer to spousal immigrants.

Where spouses are concerned, § 1186a uses more

specific terms like “citizen” or “alien lawfully admitted for

permanent residence.” See 8 U.S.C. § 1186a(c)(4)(C),

(h)(1)(A)-(C). Surely Congress also could have

used these terms in their discussion of K-4 children.

But instead, Congress used a more general term—“individual”—that encompasses U.S. citizens, U.S. permanent residents, and alien parents. “ ‘Where Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.’ ”

Moral-Salazar v. Holder, 708 F.3d 957, 961 (7th Cir. 2013)

(quoting Kucana v. Holder, 558 U.S. 233, 249 (2010)). Thus,

Congress’s choice of words suggests that a K-4 may

be defined by a relationship to their alien parent in

addition to their citizen stepparent. That, in turn,

suggests that Congress did not intend for a relationship with a citizen stepparent to be the only way for a K-4

to adjust status.

Second, and perhaps more important, is § 1186a’s

emphasis on marriage. Like § 1255(d), § 1186a(h)(2)

presupposes that K-4 children will obtain status not
No. 12-3008 19

through a relationship to a citizen, but rather “through

a qualifying marriage.” This emphasis on marriage in

§ 1186a further suggests that, in drafting § 1255(d), Congress intended to allow K-4s to adjust status as a result

of their parent’s marriage and not merely based on

a relationship to a citizen.

The purpose and history of § 1255(d) also support

this reading. Before § 1255(d) was passed, “even a sham

marriage to a United States citizen provided a ready

and immediate path to lawful permanent resident status.”

Choin, 537 F.3d at 1120. Accordingly, Congress passed

the Immigration Marriage Fraud Amendments of 1986,

Pub. L. No. 99-639, 100 Stat. 3537 (1986). These amendments were designed “to deter immigration-related

marriage fraud and other immigration fraud,” Choin, 537

F.3d at 1120, by eliminating the “streamlined, nearly

automatic adjustment-of-status procedure for K-1 visa

holders.” Birdsong, 641 F.3d at 960. Thus, § 1255(d) provides, in essence, that (1) a person who is let into

the country to marry a citizen must actually marry that

citizen; and (2) a person who is let into the country to

join her parents must actually join her parents.

We can see why Congress would endorse these

sensible principles. But why would Congress endorse

the result in this case? Why admit a class of people into

the country—using a visa designed to reunite families—

only to give them the boot after a few years? What antifraud purpose does that serve?

None, it turns out. After the Immigration Marriage

Fraud Amendments were passed, it became clear that

they had unintended consequences on K visa immi-
20 No. 12-3008

grants. As the Department of Homeland Security has

recognized, the amendments “created a gap regarding

the procedure for a K-2 alien to adjust status to that of

a person admitted for permanent residence.” Memorandum from Michael L. Aytes, Assoc. Dir. of Domestic

Ops. for USCIS, re: Adjustment of Status for K-2 Aliens

(Mar. 15, 2007), available at http://www.uscis.gov/USCIS/

L a w s / M e m o r anda/S tat i c_Fi l es_ M e m o r anda/

k2adjuststatus031507.pdf (last visited July 1, 2013); see

also Kondrachuk, 2009 WL 1883720, at *2; Le, 25 I. & N. Dec.

at 550. This gap meant that “K-2 visa holders who

[were] eighteen or older at the time of their K-1 parent’s

marriage [were] not considered immediate relatives of

a U.S. citizen and [were] not eligible for an immediate

visa.” Kondrachuk, 2009 WL 1883720, at *2. And that was

so “even though these children were given K-2 visas to

enter the United States with their K-1 parent when

they had already attained eighteen years of age.” Id. In

other words, K-2s were in the same predicament that

Akram now finds herself in as a K-4. The response to

this predicament was 8 C.F.R. § 214.2(k)(6)(ii), which

provides an administrative means for K-2s to adjust

status without demonstrating a relationship to a U.S.

citizen. Le, 25 I. & N. Dec. at 549-50. In other words, both

the BIA and the agency concluded that Congress

intended to allow K-2s to adjust status even if they were

already eighteen at the time of their parents’ marriages.

It is unclear why the same administrative fix was not

made for K-4s. Perhaps it is because the Immigration

Marriage Fraud Amendments were passed in 1986, Pub. L.

No. 99-639, 100 Stat 3537 (1986), and K-4 visas were not
No. 12-3008 21

created until 2000, see Legal Immigration Family Equity

Act, Pub. L. 106-553, 114 Stat. 2762, at 2762A-114 (2000).

The issue may simply have faded from attention in

the intervening fourteen years. But whatever the reason

for the lack of an administrative solution, we see no

statutory reason for treating K-2s and K-4s so differently. After all, K-2 and K-4 visas arise from the exact

same statutory language. See 8 U.S.C. § 1101(a)(15)(K)(iii).

And consider the bizarre upshot of the government’s

reading of § 1255(d)’s legislative history. Set aside for

the moment the fact that § 1255(d)’s text does not

actually require K-4s to adjust status by way of a U.S.

citizen. If the statute did require K-4s to adjust status

via a citizen, why not require K-2s to do the same? Consider again that, at the time Congress passed § 1255(d),

the K-1 and K-2 categories existed, but the K-3 and K-4

categories did not. Why, in enacting § 1255(d), would

Congress want to (1) not legislate regarding visa

categories (K-1s and K-2s) that then existed, but nevertheless (2) impose additional burdens on visa categories

(K-3s and K-4s) that did not exist at the time?

The only logical answer is that Congress did not

intend § 1255(d) to prevent people in Akram’s situation

from adjusting status. Section 1255(d) does not require K4s to adjust status by way of their petitioning stepparent. Instead, it merely requires them to adjust status “as

a result of the marriage of” their parents. Akram’s proposed methods of adjusting status both would satisfy

that requirement. The structure and history of the

statute further support her. That contrasts with the gov-
22 No. 12-3008

ernment’s reading of § 1255(d), embedded in 8 C.F.R.

§ 245.1(i), that a K-4 may adjust status only by way of a

relationship to the petitioning citizen. That reading is

unmoored from § 1255(d)’s text, does nothing to

further § 1255(d)’s purpose of fraud-prevention, and

frustrates the underlying goals of the K visa system. “The

judiciary is the final authority on issues of statutory

construction and must reject administrative constructions which are contrary to clear congressional intent.”

Chevron, 467 U.S. at 843 n.9. We therefore conclude that

8 C.F.R. § 245.1(i)’s requirement that K-4s adjust status

only by way of the sponsoring U.S. citizen is contrary to

8 U.S.C. § 1255(d) and 8 U.S.C. § 1101(a)(15)(K)(iii).

The government points to two other statutes in defense

of 8 C.F.R. § 245.1(i), but neither supports the government’s reading. The first provision is 8 U.S.C. § 1255(a),

which provides that

[t]he status of an alien who was inspected and

admitted or paroled into the United States . . . may

be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for

permanent residence if (1) the alien makes an

application for such adjustment, (2) the alien is

eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed.

In other words, an alien may adjust status if (1) she

applies for it; (2) she is eligible to immigrate permanently

to the United States; and (3) an immigrant visa is immedi-
No. 12-3008 23

Although 8 U.S.C. § 1255(a) gives the Attorney General 4

“discretion” to adjust an alien’s status, “[t]he mere fact that a

statute gives the Attorney General discretion as to whether to

grant relief after application does not by itself give the

Attorney General the discretion to define eligibility for such

relief.” Succar, 394 F.3d at 10. Thus, we retain the authority to

ensure that the Attorney General exercises his or her discretion within lawful bounds. See INS v. Cardoza-Fonseca, 480

U.S. 421, 444-45, 449-50 (1987) (invalidating administrative

interpretation as contrary to congressional intent because it

limited the Attorney General’s discretion in ways not required

by statute).

ately available to her. The government then points to

4

8 U.S.C. § 1154(a)(1)(A), which provides that “any

citizen of the United States claiming that an alien is

entitled to classification by reason of [a familial or immediate relative relationship] may file a petition

with the Attorney General for such classification,”

8 U.S.C. § 1154(a)(1)(A)(i), unless the citizen has been

convicted of a serious crime against a minor, 8 U.S.C.

§ 1154(a)(1)(A)(viii)(I)-(II).

The government argues that these two statutes, read

together, support 8 C.F.R. § 245.1(i) by “unambiguously

demonstrat[ing] that Congress intended nonimmigrant

immediate relatives seeking adjustment of status to

show immigrant visa eligibility and availability” by

filing an I-130. (Appellee’s Br. at 35.) But we do not see

how. Section 1154(a)(1)(A) merely provides that a U.S.

citizen may ask the government to treat her relatives as

relatives. It does not require immigrants who have rela-
24 No. 12-3008

The BIA held that Akram was not eligible to receive an 5

immigrant visa because of 8 U.S.C. § 1255(d) and 8 C.F.R.

§ 245.1(i). See Akram, 25 I. & N. Dec. at 882. It did not address

whether Akram could otherwise meet § 1255(a)’s visa availability requirements. Accordingly, we leave to the BIA to

determine on remand whether Akram ultimately will be able

to satisfy those requirements.

tives in the United States to apply for visas, or adjust

status, on that basis alone. And 8 U.S.C. § 1255(a) says

that aliens who want to adjust status must show they

are eligible to immigrate and that there is a visa ready

for them. Unimpeded by 8 C.F.R. § 245.1(i), Akram

might be able to make that showing. She might, for instance, adjust status immediately like K-2s do under 8

C.F.R. § 214.2(k)(6)(ii). Or, as discussed, she might seek

an immigrant visa through her mother. Neither 8 U.S.C.

§ 1255(a), nor 8 U.S.C. § 1154(a)(1)(A), support 8 C.F.R.

§ 245.1(i)’s requirement that K-4s adjust status only by

way of a relationship to the petitioning citizen.5

The executive branch cannot decide, by rule or by

decision, to abandon a duty that Congress has delegated

to it. See INS v. Cardoza-Fonseca, 480 U.S. 421, 444-45, 449-

50 (1987) (holding invalid, under prong one of Chevron, a

BIA interpretation that limited the Attorney General’s

discretion in ways contrary to the will of Congress); see

also Chevron, 467 U.S. at 843 n.9. Here, traditional tools

of statutory construction indicate that Congress intended to give K-4s like Akram the opportunity to

adjust status and join their parents in the United States.

The regulation codified at 8 C.F.R. § 245.1(i), and the
No. 12-3008 25

The BIA’s opinion relied almost entirely on 8 C.F.R. § 245.1(i). 6

However, a single sentence near the end of the opinion

suggests two other possible bases for its decision: 8 U.S.C.

§ 1255(d) and 8 C.F.R. § 1245.1(c)(6)(ii). See Akram, 25 I. & N. Dec.

at 882. To the extent that the BIA’s decision also relied on

these provisions, its decision was still mistaken. As we have

already discussed at length, 8 U.S.C. § 1255(d) does not bar

Akram from adjusting status; it merely requires Akram to

adjust status “as a result of the marriage” of her parent. Similarly, 8 C.F.R. § 1245.1(c)(6)(ii) provides that a K-4 must

adjust status “based upon the marriage of the K-3 spouse.”

Accordingly, neither provision categorically prevents Akram

from adjusting status.

BIA decision applying it, both deny Akram that opportunity. Because “Congress had an intention on the

precise question at issue, that intention is the law and

must be given effect.” Chevron, 467 U.S. at 843 n.9. We

therefore hold that—insofar as they require K-4s to

adjust status via a relationship to a U.S. citizen instead

of merely “as a result of the marriage” of their parents—

8 C.F.R. § 245.1(i) and the BIA’s decision applying

that rule are invalid. Because this holding disposes of 6

the case, we need not address Akram’s alternative argument that 8 C.F.R. § 245.1(i) is also unconstitutional.

That leaves only the question of relief. Akram asks us

to hold that she may adjust status in the manner of a K-2,

without filing an I-130. See 8 C.F.R. § 214.2(k)(6)(ii). In

the alternative, she asks us to hold that she may adjust

status via an I-130 filed by her mother, who has now

become a lawful permanent resident. But our role is
26 No. 12-3008

to review agency decisions; it is not to dictate decisions

in the first instance. See Gonzales v. Thomas, 547 U.S. 183,

186 (2006) (per curiam); INS v. Ventura, 537 U.S. 12, 16

(2002) (per curiam); Ghebremedhin v. Ashcroft, 392 F.3d

241, 243-44 (7th Cir. 2004) (per curiam). Congress vested

the Attorney General with the discretion to adjust an

alien’s status. See 8 U.S.C. § 1255(a). That discretion

does not include the right to deny adjustment based on

a rule that is contrary to the will of Congress. See

Cardoza-Fonseca, 480 U.S. at 449-50; Succar, 394 F.3d at 10.

But beyond that, we leave it to the Attorney General

to decide whether, and how, Akram will be able to

adjust status. 

III. CONCLUSION

We GRANT Akram’s petition for review, REVERSE the

decision of the BIA, and REMAND for proceedings consistent with this opinion.

7-9-13