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3rd Circuit: Gov't Can't Treat K-4 Visas Like Tourist Visas

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By Jonathan R. Tung, Esq. on June 13, 2016 11:58 AM

The Third Circuit took steps in a recent case to close an incongruous loophole in immigration law that leads to certain K-4 visa holders being removed wrongly. It reversed a Board of Immigration Appeals (BIA) decision that earlier found that a young Chinese woman could not change her status to become a permanent United States resident.

The law as it has been generally applied, said the court, "contravenes congressional intent."

Immigration and Nationality Act and the K-4

The dispute arose out a young Chinese woman's inability to apply for permanent resident status owing to her age when her mother married an American citizen. Si Min Cen was 19 when her mother married her step-father. This placed her in a small camp of K-4 Visa holders who, through a strange quirk in immigration law, cannot adjust their status to permanent residency because of their being between 18 to 21 at the time of their parent's marriage. The K-4 is a temporary non-immigrant visa that allows a child to live with a parent pending the approval of a permanent visa petition.

Removal

Cen had to go through the process of removal proceedings and was threatened with deportation back to China upon her 21st birthday. This was affirmed by the BIA. But the Third Circuit ruled that the purpose of K-visas was to let families stay together and that an application of the IJ's interpretation would render K-4s into tourist visas, giving their holders a mere "glimpse" of the American life as they awaited removal. Such a ruling "defies common sense," the circuit said.

Marriage Fraud

The DOJ argued that immigration regulations are required and are a reasonable exercise of power because it advanced congressional attempts to minimize marriage fraud. This refers to the practice of entering into illegitimate marriages for the purpose of gaining a permanent residency in the United States -- with no actual intent (or desire) to spend life as a married couple. But while the circuit acknowledged that this was a valid interest, the DOJ failed to show how the K-4 advanced that goal.

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