In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-3008

M AHVASH A KRAM,
                                                     Petitioner,
                              v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                    Respondent.


               Petition for Review of an Order of
               the Board of Immigration Appeals.
                        No. A096 769 035



        A RGUED A PRIL 1, 2013—D ECIDED JULY 9, 2013




  Before B AUER, K ANNE, and T INDER, Circuit Judges.
  K ANNE, 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,

, 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, 

, 812 (7th Cir. 2006); Muhur v. Ashcroft, 

, 656 (7th Cir. 2004); Asani v. INS, 

, 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 con-
struction 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. B ACKGROUND
  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 immi-
grant 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/im m igrants/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, non-
immigrant 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 non-
immigrant 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 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
   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 avail-
    ability 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[.]

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 separa-
tion 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, 

, 832-
33 (7th Cir. 2005); Succar v. Ashcroft, 

, 22 (1st
Cir. 2005). Taken together with the K visa system, ad-
justment 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 immi-
grants. 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 peti-
tion 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 dis-
cussed, 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, 

, 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 immigra-
tion 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 re-
lationship 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 unmar-
ried daughters of permanent resident aliens”). So far as
we know, that petition and its related paperwork are
still working their way through the system. Neverthe-
less, 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 peti-
tion. See 8 C.F.R. § 214.2(k)(6)(ii); cf. Sesay, 25 I. & N. Dec.
8                                                  No. 12-3008

at 439 (“there is no requirement for a Form I-130 immi-
grant visa petition to be filed . . . for the fiancé(e)”). K-4s,
on the other hand, must pass through a much nar-
rower visa petitioning process. Under current regula-
tions, 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


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.
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, 

, 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 uni-
verse, Akram would, in all likelihood, already be a
lawful permanent resident. This stark difference in out-
comes, 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

could not adjust status as Siddique’s “child” and that it
lacked the authority to declare 8 C.F.R. § 245.1(i) unconsti-
tutional 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. 

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 relation-
ship 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. A NALYSIS
  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 eigh-
teen 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


2
  Akram also challenges an identical regulatory provision at
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.
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 pos-
sible, see Camreta v. Greene, 

, 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., 

, 842-44
(1984). See United States v. Mead Corp., 

, 226-27
(2001) (rules promulgated through notice-and-comment
rulemaking entitled to Chevron deference); Escobar v.
Holder, 

, 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.” 

. “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.” 

n.9.
Thus, “[i]f a court, employing traditional tools of statu-
tory construction, ascertains that Congress had an inten-
tion on the precise question at issue, that intention is
the law and must be given effect.” Id.; accord City of
Arlington v. FCC, 

, 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, 

, 802 (7th Cir.
2012) (citing 

-44); accord 

.
  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 mar-
     riage 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 peti-
     tion and the availability to the alien of an immi-
     grant 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[.]

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.” 

uses different lan-
guage, but it achieves the same result. It conditions the
availability of a K-4 visa on the child’s desire to “accom-
pany[], 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 some-
day 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 statu-
tory provision supports 8 C.F.R. § 245.1(i)’s require-
ment 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, 

, 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, 

, 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) unques-
tionably 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

riage to another man. Birdsong v. Holder, 

, 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 require-
ment 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.3 Either of these mechanisms



3
  Seeking a visa through her mother would be possible,
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 immi-
grant parent generally must wait in line (metaphorically,
at least) for a visa to become available. See USCIS, Visa Avail-
ability & Priority Dates, http://www.uscis.gov/portal/site/uscis/
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=
                                                      (continued...)
No. 12-3008                                                 17

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 con-
sistent 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 condi-
tions on permanent residence for K visa immigrants. See

(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



(...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.
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.”

  Two parts of this text stand out. The first is the use of
the term “individual.” 

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—“in-
dividual”—that encompasses U.S. citizens, U.S. perma-
nent residents, and alien parents. “ ‘Where Congress in-
cludes particular language in one section of a statute
but omits it in another section of the same Act, it is gen-
erally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’ ”
Moral-Salazar v. Holder, 

, 961 (7th Cir. 2013)
(quoting Kucana v. Holder, 

, 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 relation-
ship 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), Con-
gress 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.”

. Accordingly, Congress passed
the Immigration Marriage Fraud Amendments of 1986,
Pub. L. No. 99-639, 100 Stat. 3537 (1986). These amend-
ments were designed “to deter immigration-related
marriage fraud and other immigration fraud,” 

, by eliminating the “streamlined, nearly
automatic adjustment-of-status procedure for K-1 visa
holders.” 

. Thus, § 1255(d) pro-
vides, 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 anti-
fraud 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.” Memoran-
dum 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/
Laws/Mem oranda/Static_Files_Memoranda/
k2adjuststatus031507.pdf (last visited July 1, 2013); see
also Kondrachuk, 

, 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, 

, 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.” 

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 differ-
ently. 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? Con-
sider 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 never-
theless (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 K-
4s to adjust status by way of their petitioning steppar-
ent. Instead, it merely requires them to adjust status “as
a result of the marriage of” their parents. Akram’s pro-
posed 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 construc-
tions which are contrary to clear congressional intent.”

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 govern-
ment’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 discre-
     tion and under such regulations as he may pre-
     scribe, 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 ad-
     missible to the United States for permanent resi-
     dence, 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

ately available to her.4 The government then points to
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 im-
mediate 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-



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

. Thus, we retain the authority to
ensure that the Attorney General exercises his or her discre-
tion within lawful bounds. See INS v. Cardoza-Fonseca, 

, 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).
24                                                  No. 12-3008

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 in-
stance, 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, 

, 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 

n.9. Here, traditional tools
of statutory construction indicate that Congress in-
tended 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


5
  The BIA held that Akram was not eligible to receive an
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 avail-
ability requirements. Accordingly, we leave to the BIA to
determine on remand whether Akram ultimately will be able
to satisfy those requirements.
No. 12-3008                                                       25

BIA decision applying it, both deny Akram that oppor-
tunity. Because “Congress had an intention on the
precise question at issue, that intention is the law and
must be given effect.” 

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.6 Because this holding disposes of
the case, we need not address Akram’s alternative argu-
ment 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



6
   The BIA’s opinion relied almost entirely on 8 C.F.R. § 245.1(i).
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. Simi-
larly, 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.
26                                              No. 12-3008

to review agency decisions; it is not to dictate decisions
in the first instance. See Gonzales v. Thomas, 

,
186 (2006) (per curiam); INS v. Ventura, 

, 16
(2002) (per curiam); Ghebremedhin v. Ashcroft, 

, 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

; 

.
But beyond that, we leave it to the Attorney General
to decide whether, and how, Akram will be able to
adjust status.


                    III. C ONCLUSION
  We G RANT Akram’s petition for review, R EVERSE the
decision of the BIA, and R EMAND for proceedings con-
sistent with this opinion.




                           7-9-13