Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

1

Section 101(a)(15)(K) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)

(2006), lists three nonimmigrant visa categories, including (i) fiancé(e)s seeking to enter the

United States to conclude a valid marriage, (ii) aliens married to a United States citizen who

has filed a family-based immigrant visa petition that is pending adjudication, and (iii) minor

children accompanying or following to join aliens described in clauses (i) and (ii). The

regulations classify the fiancé(e) visa category as K-1 and the minor children accompanying

or following to join the fiancé(e) as K-2. The spouse category is classified for visa purposes

as K-3, with the minor children designated as K-4. See 8 C.F.R. § 214.1(a)(1)–(2) (2012).

867

Matter of Jean Ro Saclolo VALENZUELA, Respondent

Decided July 20, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien who is admitted to the United States in K-4 nonimmigrant status may only adjust

his or her status to that of a lawful permanent resident based on the Petition for Alien

Relative (Form I-130) filed by the United States citizen K visa petitioner.

FOR RESPONDENT: Steve V. Lewis, Esquire, Glendale, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Mary J. Hannett, Assistant

Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.

MALPHRUS, Board Member:

The respondent has appealed from a decision dated August 19, 2009,

in which an Immigration Judge granted her voluntary departure following

the denial of her application for adjustment of status. This case addresses

the question whether the respondent, who entered the United States on

a nonimmigrant K-4 visa as a derivative of her mother’s K-3 visa (as the

spouse of a United States citizen), may adjust her status to that of a lawful

permanent resident based on her own subsequent marriage to a United States

citizen.1 We hold that an alien who is admitted to the United States in K-4

status may only adjust his or her status to that of a lawful permanent resident

based on the Petition for Alien Relative (Form I-130) filed by the United States

citizen K visa petitioner. The respondent’s appeal will therefore be dismissed.
Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

2 Because the respondent was under 18 years of age at the time of her mother’s marriage,

she qualified as the “child” of her mother’s United States citizen spouse, pursuant to section

101(b)(1)(B) of the Act, so long as she remained unmarried and under 21 years of age.

3 The respondent subsequently made a second attempt to adjust her status based on the visa

petition filed by the K visa petitioner, but her application was denied on May 25, 2007,

because the first Form I-130 had been denied and the respondent no longer qualified as the

child of a United States citizen when the second I-130 was filed since she was more than

21 years of age. The denial of the respondent’s application to adjust status as to the K visa

petitioner is not before us.

868

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a 27-year-old native and citizen of the Philippines. The

respondent’s mother, who is also a native and citizen of the Philippines,

married a United States citizen on October 3, 2001, when the respondent was

16 years old.2 The United States citizen spouse thereafter filed a K visa

petition on behalf of the respondent’s mother, as well as the respondent

as a derivative beneficiary. On June 30, 2003, the respondent and her mother

were issued K-4 and K-3 visas, respectively. The respondent entered the

United States in K-4 visa status on December 28, 2003, with authorization

to remain in the United States for a temporary period not to exceed

December 27, 2005.

The respondent’s mother entered the United States in K-3 nonimmigrant

status and thereafter adjusted her status to that of a lawful permanent resident

based on her marriage to the K visa petitioner on May 2, 2007. The

respondent also sought to adjust her status based on the visa petition filed

on her behalf by the K visa petitioner. However, the Form I-130 was denied

as a result of the respondent’s failure to appear for an interview.3

The respondent’s K-4 visa status expired on December 27, 2005.

On June 16, 2007, the respondent married a lawful permanent resident who

filed a visa petition on her behalf. Removal proceedings against the

respondent were commenced on August 27, 2007. Her husband subsequently

naturalized, and the Form I-130 he filed on the respondent’s behalf was

approved on April 2, 2008. The respondent then applied to adjust her status

before the Immigration Judge under section 245(a) of the Immigration and

Nationality Act, 8 U.S.C. § 1255(a) (2006), based on the approved immediate

relative visa petition filed by her United States citizen spouse. In a written

decision dated July 15, 2009, the Immigration Judge denied the respondent’s

adjustment application, finding that she is ineligible to adjust her status on any

basis other than the Form I-130 filed by the K visa petitioner. In a final

decision on August 19, 2009, the Immigration Judge granted the respondent’s

request for voluntary departure in lieu of removal.
Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

869

II. ANALYSIS

The respondent argues that she is eligible to adjust her status pursuant

to section 245(a) of the Act based on her marriage to her United States citizen

husband, notwithstanding the fact that she entered the United States on a K-4

visa. We do not agree.

Section 245(d) of the Act provides as follows:

The Attorney General may not adjust, under subsection (a), the status of

a nonimmigrant alien described in section 101(a)(15)(K) except to that of an alien

lawfully admitted to the United States on a conditional basis under section 216

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 [K visa] petition . . . .

(Emphasis added.) The respondent argues that this language is ambiguous and

that it may reference only the primary K-1 beneficiary and not a derivative

beneficiary. She therefore contends that as long as the principal beneficiary

of the K-1 or K-3 visa petition adjusted his or her status in compliance with

section 245(d), a derivative beneficiary of the K-1 or K-3 visa holder may

adjust status on any valid basis.

In applying settled principles of statutory construction, we look first to the

particular statutory language. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988). “If the statute is clear and unambiguous that is the end of the matter,

for the court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress.” Id. (quoting Bd. of Governors, FRS

v. Dimension Fin. Corp., 474 U.S. 361, 368 (1986)) (internal quotation mark

omitted). Issues regarding whether the language is plain and unambiguous are

“determined by reference to the language itself, the specific context in which

that language is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also, e.g., Matter

of Camarillo, 25 I&N Dec. 644, 646 (BIA 2011).

The language of section 245(d) of the Act is not ambiguous. Section

101(a)(15)(K)(iii) of the Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), expressly

includes “the minor child” of a principal beneficiary. Therefore section 245(d)

applies to any K visa holder, whether a principal beneficiary or a derivative.

“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.” Choin v. Mukasey,

537 F.3d 1116, 1119 n.4 (9th Cir. 2008); see also Markovski v. Gonzales,

486 F.3d 108, 110 (4th Cir. 2007) (holding that “the clear language” of section

245(d) of the Act “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”).
Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

870

In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), we addressed

ambiguities in section 245(d) of the Act concerning whether a K-1 visa holder

may adjust his or her status after fulfilling the requirements for adjustment

of status through admission on the K nonimmigrant visa and timely marriage

to the K visa petitioner, even if that marriage no longer exists at the time when

the adjustment application is adjudicated. Following the reasoning in that

case, we later determined in Matter of Le, 25 I&N Dec. 541 (BIA 2011), that

the derivative beneficiary of a K-1 visa who was under 21 years of age at the

time of his admission to the United States as a K-2 nonimmigrant could adjust

status following his mother’s marriage to the K visa petitioner. However,

in both of these cases, the adjustment was based on the K nonimmigrant’s

relationship to the K visa petitioner, not a different petitioner. Also, while we

did not reference derivative beneficiaries in Matter of Sesay, we stated that the

language in section 245(d) of the Act is unambiguous to the extent that

it clearly precludes a K-1 nonimmigrant from adjusting status on any basis

other than marriage to the K visa petitioner. Matter of Sesay, 25 I&N Dec.

at 433.

The respondent contends that the restrictions on adjusting status apply only

to the principal beneficiary of the K visa petition, and that once the principal

beneficiary has adjusted status based on his or her marriage to the K visa

petitioner, the restrictions are “lifted” as to any derivative beneficiaries.

We do not agree. If the respondent were correct that a K visa derivative

beneficiary is eligible to adjust through a different petitioner, then a K visa

derivative would be in a better position than the principal K visa holder.

Furthermore, we cannot presume that one type of petitioner may be substituted

for another in order to make an alien eligible for adjustment of status. Such

substitution of petitioners as the respondent advocates must be expressly

authorized by law, and there is nothing in the statute or the regulations

granting this authority.

Through the Immigration Marriage Fraud Amendments Act of 1986,

Pub. L. No. 99-639, 100 Stat. 3537, Congress imposed various restrictions on

K visas in order to address the problem of marriage fraud, including

a requirement that a fiancé(e) could only adjust status based on the marriage

to the fiancé(e) petitioner. See Matter of Sesay, 25 I&N Dec. at 437. The

respondent argues that the policy goals of combating marriage fraud are

satisfied once the K-3 nonimmigrant adjusts status based on a bona fide

marriage to the K visa petitioner and that the restrictions on adjustment

of status of K visa holders therefore do not apply to the subsequent adjustment

of status of a derivative K-4 nonimmigrant.

However, Congress chose to address the issue of marriage fraud

by creating a broad prohibition on the adjustment of status of K visa holders

on any basis other than the marriage between the K visa petitioner and the
Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

4 We find no merit in the respondent’s assertion that the reference in the regulations

to “K-3/K-4” aliens, rather than “K-3 and K-4” or “K-3 or K-4” aliens, reflects an intent

to allow, or an ambiguity regarding whether to allow, a K-4 nonimmigrant to adjust status

on a basis other than the visa petition filed on his or her behalf by the same United States

citizen who had previously petitioned for the K-3 status of that alien’s parent. See 8 C.F.R.

§ 1245.1(i). The regulations are explicit that a K-4 visa holder may only adjust based on his

or her status as a child of the original K visa petitioner who filed a petition for that alien’s

K-4 status. Id.; see also 8 C.F.R. § 1245.1(c)(6)(ii).

5 The respondent asserts that she will be subject to the 10-year bar on reentry into the

United States if she is removed to the Philippines. See section 212(a)(9)(B)(i)(II) of the Act,

8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). In response, the DHS notes that the respondent

(continued...)

871

principal K visa beneficiary. See section 245(d) of the Act. There are

no exceptions to this strict limitation on adjustment of status by K visa holders,

and any exemption such as that proposed by the respondent cannot

be presumed absent express authorization by law. See Kalal v. Gonzales, 402

F.3d 948, 952 (9th Cir. 2005) (noting that if the alien’s argument were

adopted, she could avoid the restrictive, carefullycrafted scheme that Congress

created for the purpose of avoiding marriage fraud). The language of the

statute clearly indicates Congress’ intent that all K visa holders can only adjust

status based on a petition filed by the K visa petitioner after a bona fide

marriage between that petitioner and the principal K visa beneficiary has been

established. See Caraballo-Tavera v. Holder, 683 F.3d 49 (2d Cir. 2012).

Moreover, even if there were some ambiguity in section 245(d) of the Act,

the regulations, which we are bound to follow, leave no doubt regarding

whether a derivative K visa holder may adjust status on a basis other than the

marriage between the K visa petitioner and the principal K visa beneficiary.

Specifically, 8 C.F.R. §§ 1245.1(c)(6)(ii) and 1245.1(i) (2012) clearly

articulate that an alien admitted to the United States in K-4 visa status may

only adjust his or her status based on the K-3 visa holder’s marriage to the

United States citizen who petitioned for his or her K-3 visa status.4

See Birdsong v. Holder, 641 F.3d 957, 961 (8th Cir. 2011) (finding that the

applicable regulations at 8 C.F.R. §§ 245.1(c)(6)(i) and 1245.1(c)(6)(i)

constitute “a permissible construction of [section 245 of the Act] that is

entitled to Chevron deference”).

III. CONCLUSION

In sum, the respondent is ineligible to adjust her status based on the

immediate relative visa petition filed by her United States citizen husband

because she entered the United States on a K-4 nonimmigrant visa.5
Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

(...continued)

appears to be prima facie eligible for a discretionary waiver of the bar under section

212(a)(9)(B)(v) because her husband and stepfather are United States citizens, and her

mother is a lawful permanent resident of the United States. We agree with the DHS

regarding the respondent’s apparent eligibility for a waiver, although we do not know

whether the waiver would be granted through consular processing.

872

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the Immigration Judge’s order and

conditioned upon compliance with conditions set forth by the Immigration

Judge and the statute, the respondent is permitted to voluntarily depart the

United States, without expense to the Government, within 60 days from the

date of this order or any extension beyond that time as may be granted by the

DHS. See section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2006); see also

8 C.F.R. §§ 1240.26(c), (f) (2012). In the event the respondent fails

to voluntarily depart the United States, the respondent shall be removed

as provided in the Immigration Judge’s order.

NOTICE: If the respondent fails to voluntarily depart the United States

within the time period specified, or any extensions granted by the DHS, the

respondent shall be subject to a civil penalty as provided by the regulations and

the statute and shall be ineligible for a period of 10 years for any further relief

under section 240B and sections 240A, 245, 248, and 249 of the Act, 8 U.S.C.

§§ 1229b, 1255, 1258, and 1259 (2006). See section 240B(d) of the Act.

WARNING: If the respondent files a motion to reopen or reconsider prior

to the expiration of the voluntary departure period set forth above, the grant

of voluntary departure is automatically terminated; the period allowed for

voluntary departure is not stayed, tolled, or extended. If the grant of voluntary

departure is automatically terminated upon the filing of a motion, the penalties

for failure to depart under section 240B(d) of the Act shall not apply. See

8 C.F.R. § 1240.26(e)(1).

WARNING: If, prior to departing the United States, the respondent files

any judicial challenge to this administratively final order, such as a petition for

review pursuant to section 242 of the Act, 8 U.S.C. § 1252 (2006), the grant

of voluntary departure is automatically terminated, and the alternate order

of removal shall immediately take effect. However, if the respondent files

a petition for review and then departs the United States within 30 days of such

filing, the respondent will not be deemed to have departed under an order

of removal if the alien provides to the DHS such evidence of his or her

departure that the Immigration and Customs Enforcement Field Office

Director of the DHS may require and provides evidence the DHS deems
Cite as 25 I&N Dec. 867 (BIA 2012) Interim Decision #3761

873

sufficient that he or she has remained outside of the United States. The

penalties for failure to depart under section 240B(d) of the Act shall not apply

to an alien who files a petition for review, notwithstanding any period of time

that he or she remains in the United States while the petition for review

is pending. See 8 C.F.R. § 1240.26(i).