VALENZUELA, 25 I. & N. Dec. 867

Valenzuela entered the United States in K-4 nonimmigrant status derived from her mother's K-3 petition.
Mother married a U.S. citizen in 2001; the petitioner filed I-130 petitions for both mother and Valenzuela.
Valenzuela and mother obtained K-4 and K-3 visas respectively in 2003; Valenzuela's K-4 status expired in 2005.
Mother adjusted to LPR in 2007 based on her marriage to the K-1/K-3 petitioner; Valenzuela's I-130 was denied for failure to attend an interview.
Valenzuela married a lawful permanent resident in 2007; an I-130 filed by her husband was approved in 2008.
Valenzuela sought adjustment under §245(a) based on her U.S. citizen husband's petition; IJ denied; Board granted voluntary departure.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can a K-4 derivative adjust based on marriage to a U.S. citizen?	Valenzuela argues 245(a) permits adjustment through her own marriage.	DHS contends 245(d) bars adjustment for any K visa holder except through the original petitioner’s marriage.	No; K-4 holders may not adjust except via the original petitioner's marriage.

Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008) (plain language of 245(d) precludes K visa adjustments through other bases)
Markovski v. Gonzales, 486 F.3d 108 (4th Cir. 2007) (clear language prohibits adjustment on any basis other than the marriage to the petitioning citizen)
Birdsong v. Holder, 641 F.3d 957 (8th Cir. 2011) (regulations construable under Chevron deference support 245(d) interpretation)
Kalal v. Gonzales, 402 F.3d 948 (9th Cir. 2005) (statutory structure limits adjustment to congressional design)
Caraballo-Tavera v. Holder, 683 F.3d 49 (2d Cir. 2012) (statutory intent supports prohibiting substitutions of petitioners for K visas)