UNTANGLING DISTINCTIVE DEFINITIONS AND DIFFERING AGE LIMITS

By Edward Shulman (582 words)
Posted in Immigration Law on April 01, 2014

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An appellate decision issued last year by the Seventh Circuit Court of Appeals gave an opportunity for a young woman from Pakistan to join the rest of her family in the United States. The federal appellate court’s ruling in Akram v. Holder, 721 F. 3d 853 (7th Cir. 2013) determined that a discrepancy between the regulations set by the USCIS to govern eligibility for two different, but related, immigrant visas contravened the legislative intent underlying the purpose of these two types of visas.

The Immigration and Nationality Act (INA) gives special immigration preferences to aliens with relatives in the United States. A minor child of a woman coming to the United States to marry a citizen can achieve a K-4 non-immigrant visa. In recognition of the stated goal of reuniting family members who can lawfully reside in the United States, Congress passed 8 U.S.C. § 1255 giving 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.  Holders of K visas can thus file petitions to seek permanent resident status. Her mother and younger sister managed to qualify successfully for such status however, due to a quirk in the applicable regulations, Akran’s petition was denied because of her age and relationship to her stepfather.

Akram was eighteen years of age when her mother married her stepfather, an American citizen, outside the United States.  For K-visa purposes, the term "minor child" means an unmarried son or daughter who is under twenty-one years old. As the minor child of another K-visa holder (mother), she qualified. But for purposes of qualifying for approval of a petition, she had to be under eighteen years of age after the marriage of her mother to her stepfather to be considered a stepchild. The Court of Appeals engaged in a lengthy discussion of the statutory intent of the laws which created the interlocking system of immigration laws and decided that these conflicting regulations are invalid because they do not comply with purposes intended by Congress. Accordingly, they ruled that her petition should be reconsidered by the USCIS without regard to these age requirement distinctions which violate Congressional intent.

As an aside, what is highly unusual about this judicial opinion is the nature of the language used in its introduction. The overwhelming percentage of case opinions published by the courts contains only mundane, clinically technical language. Judges tend to avoid flowery or poetic exhortations. But the Seventh Circuit echoes the humanity of its decision when it begins this opinion by noting, “The Immigration and Nationality Act ("INA"),… [citations omitted] 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…. [citations omitted] 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. ” Or perhaps the tender hearts of the judges who comprised this particular appellate panel.

The Shulman Law Group has helped thousands of fathers, daughters, mothers, sons, fiancés and other relatives enter the United States with either a immigrant or non-immigrant visa. An experienced attorney can guide you through the many options that are available, and make certain that the paperwork is all in order so the petition is granted.

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