The K-3 Visa: What is it and who qualifies for it?
06/03/2010
The U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) estimates that each year 450,000 US citizens marry foreign nationals. They also believe that a large percentage of these marriages are entered into solely for immigration purposes. A great deal of effort is undertaken by the various US government agencies involved in the immigration process to scrutinize each international visa application. Everything must be in order or you risk your petition or application being rejected, even for minor procedural errors. This level of scrutiny, while making sure that only legitimate petitions are approved, has slowed down the visa process.
The K-3 Visa, sometimes called the Marriage Visa or Spousal Visa, was adopted by the US Congress and went into effect in August 2001. It was designed to sidestep the long delays in USCIS processing for Immediate Relative petitions for bringing a foreign national spouse into the US. At the time it was adopted it was taking two years or more to process an I-130 petition for the spouse of a US citizen. The new K-3 visa regulations were designed with a view to shorten the processing time for bringing a K-3 spouse to the US from years to months, a goal that for the most part has been achieved.
The K-3 Visa and overview:
The K-3 visa category is a visa category that allows the spouse of a US citizen to enter the US and wait for the availability of an immigrant visa. The K-3 visa is actually a nonimmigration visa, and the receipt of a K-3 visa does not mean that the foreign national spouse will become a legal permanent resident immediately upon their arrival in the U.S. However, the K-3 does allow the foreign national spouse to travel to the USA and live with their US citizen spouse while they are waiting for the immediate relative immigrant petition processing to be completed. Upon entry as a nonimmigrant K-3 the foreign national spouse may file to adjust status to Lawful Permanent Residence.
It is noteworthy that application for the K-3 nonimmigrant visa by the foreign national spouse, who is married to a US citizen, must be filed and the visa must be issued by a US consulate in the country where the marriage took place. The amount of paperwork involved in filing for a K3 visa is almost double the amount required for a fiancé's visa.
K-4 Visas: Unmarried Children of Foreign National Spouses:
The unmarried children of a foreign national spouse who are under the age of twenty-one can be included in their parent's petition and will receive a K-4 visa that will allow them to travel to the US with the parent. No separate petition is required for them. However, if the child was 18 years of age or older at the time of the marriage of their parent to the petitioning US citizen spouse then, although the child can receive a K-4 visa and enter the U.S., that child cannot obtain a green card through the US citizen step-parent. The child's K-4 visa will simply expire after two years or when the child reaches the age of 21, whichever occurs first.
Qualification for the K-3 visa:
To qualify for the K-3 non-immigrant visa you must show that:
1)You are married to the US citizen who has filed a relative petition (Form I-130) on your behalf;
2)You must be seeking to enter into the U.S. to await the availability of an immigrant visa; and
3)The relative petition filed by your US citizen spouse must still be pending.
To qualify for the K-4 visa, the visa applicant must be a child under 21 years of age, of a person who qualifies as a K-3 visa holder.
Who Cannot Use the K-3 Visa?
The K-3 visa can only be obtained by the spouse of a US citizen. The wife of a permanent resident cannot receive a K-3 visa. Children of the foreign national spouse who are married or are over the age of twenty-one cannot receive the K-4 visa. If the marriage took place while the foreign national spouse was in the U.S. in another temporary visa category or was here on a visa waiver, the foreign national spouse must depart the US in order to be eligible to receive a K-3 visa.
Because of the complexity of the situation we recommend that you seek the guidance of an immigration professional before making any decision about marrying a foreign national who is currently in the U.S. on any visa other than a K-1 fiancé's visa which you sponsored.
Marrying a US Citizen in the US or Abroad:
There are different options available to foreign nationals depending on where their marriage took place. If the marriage took place outside the US, then you must generally obtain a.K-3 visa or wait for an immigrant visa to enter the US. As far as the US government is concerned, a marriage that takes place overseas is a valid and legal marriage provided it is recognized as a legal marriage by the government of the country in which the marriage occurred.
If you intend to get married in the US, you need to obtain a K-1 Fiancé Visa to enter the US, Upon entry as a K-1 you must marry your US citizen Fiancé within 90 days. and then you can immediately file for adjustment of status to get the green card based on the marriage to US citizen.
Filing a Petition for Alien Relative:
When pursuing a K-3 visa the US citizen spouse is required to file two petitions with the USCIS:
1)First, he or she needs to file a Petition for Alien Relative, Form I-130, with the USCIS. Upon receipt the USCIS will send a Notice of Action (Form I-797) This notice tells you that the USCIS has received the petition.
2)Second, he or she needs to file a Petition for Alien Fiancé), Form I-129F, for the foreign national spouse. This petition will also include any qualifying children.
Please note that after you arrive in the US on your K-3 visa, you must continue with the permanent residence process, which generally includes the filing of an adjustment of status application, Form I-485, with the USCIS.
Applying for a K-3 Visa:
The US embassy or consulate where the foreign national spouse of a US citizen will apply for a K-3 visa must be the country where their marriage took place. Once the K-3 petition has been approved the file is transferred to the US State Department for the visa processing. The National Visa Officer will advise you on the procedures that have to be followed for visa processing. The embassy or consulate will let you know any additional things required by that specific post, such as where you need to go for the required medical examination. The following is required for the application:
1)Two copies of form DS-156, Nonimmigrant Visa Application
2)One DS-156K, Nonimmigrant Fiancé) Visa Application form
3)Police certificates from all places lived in since the age of 16
4)Birth certificates for each applicant
5)Marriage certificate for foreign national spouse
6)Death and/or divorce certificates from any previous spouses
7)Medical examination (except vaccinations)
8)A passport valid for travel to the United States and with validity dates at least six months beyond the applicant's intended period of stay in the United States (unless country-specific agreements provide exemptions).
9)Two nonimmigrant visa photos, two inches/50 X 50 mm square, showing the full face, against a light background
10)Proof of financial support (Form I-134 Affidavit of Support may be requested)
The Affidavit of Support, Form I-864, is not required for the K-3/K-4 visa, but will be needed when the foreign national spouse files for adjustment of his or her status to permanent residency. The consulate has complete discretion in determining the types of documents acceptable for this purpose.
Validity and duration of stay on K-3 visa:
The K-3 nonimmigrant visa is a multiple entry visa, valid for two years.
Extension of stay on K-3 visa:
You may apply for an Extension of Stay while in the US on a K-3 spouse visa; this is done using a Form I-539, Application to Extend or Change Nonimmigrant Status. The application for an extension should be submitted to the USCIS at least 120 days prior to the expiration of your authorized stay. Extensions will be granted in two-year intervals.
Employment while in K-3 visa status:
A foreign national spouse in the US in K-3 visa status can accept employment in the US. You may apply for Employment Authorization (EAD) using Form I-765, Application for Employment Authorization. This can be submitted immediately upon arrival in the US, concurrently with your adjustment of status application, or after submitting your adjustment of status application. In addition to, or as an alternative to, seeking employment, you can pursue full- or part-time studies while waiting for the issuance of an immigrant visa.
Adjustment of Status:
After you arrive in the US, the foreign national spouse may apply for adjustment of status using Form I-485, Application for Adjustment of Status. It is not necessary to wait for the Form I-130 to be approved before you file the I-485.
Change of Status:
K-3 and K-4 visa holders cannot change their status to any other nonimmigrant visa category while in the US.
Social Security Number:
K-3 and K-4 visa holders will need to receive their EAD before they can apply for a Social Security Number. The Social Security Administration will not accept the K-3 or K-4 visa as proof of eligibility.
Travel outside the US:
As note above the K-3 and K-4 visas are multiple entry visas so the foreign national spouse and children can travel outside the US and return using their K-3 and K-4 visas respectively. A foreign national in K-3 of K-4 visa status can travel on their K-3/K-4 visa even after filing for adjustment of status and does not need to file for Advance Parole.
Pros and Cons of the K-3 visa:
Like every other nonimmigrant visa, the K-3 visa has advantages as well as some drawbacks. But overall the positive aspects win out over the negative ones. So that you can have a clear view and better understanding of the K-3 nonimmigrant visa category we have listed some of the pros and cons.
On K-3 visa, you may:
Reside in the US with your family while waiting for the approval of your immigrant visa petition
Apply for a work permit
Travel outside of the US on short trips and re-enter
Study in the US
On K-3 visa, you cannot:
Change to any other nonimmigrant visa status
Enter the US if you have been temporarily barred for previous violations of US immigration laws
Conclusion:
The new K-3 visa regulations have helped to substantially shorten the processing time for a foreign national spouse to get visa to live in the US with their US citizen family, from years to months. The actual processing time depends on the country in which the foreign national spouse is applying for his or her K-3 visa. The consulate where you must apply is controlled by where the foreign national spouse resides and where the marriage took place. The K-3 visa process can be complex and at time unwieldy. Any carelessness can cause unforeseen trouble during the processing of the K-3 visa, which would then make it difficult for you to identify, locate and resolve the problems.
As can be seen from this short overview of the K-3 process, the whole immigrant visa process involves a number of tedious steps. However you can bring your foreign national spouse to the US to live with you while waiting for the immigrant visa process to be completed, in the shortest possible time by seeking expert consultation from a qualified immigration attorney. It is therefore of high importance that you take great care and precautions in completing and filing your K-3 visa petition and application.
The K-3 Visa, sometimes called the Marriage Visa or Spousal Visa, was adopted by the US Congress and went into effect in August 2001. It was designed to sidestep the long delays in USCIS processing for Immediate Relative petitions for bringing a foreign national spouse into the US. At the time it was adopted it was taking two years or more to process an I-130 petition for the spouse of a US citizen. The new K-3 visa regulations were designed with a view to shorten the processing time for bringing a K-3 spouse to the US from years to months, a goal that for the most part has been achieved.
The K-3 Visa and overview:
The K-3 visa category is a visa category that allows the spouse of a US citizen to enter the US and wait for the availability of an immigrant visa. The K-3 visa is actually a nonimmigration visa, and the receipt of a K-3 visa does not mean that the foreign national spouse will become a legal permanent resident immediately upon their arrival in the U.S. However, the K-3 does allow the foreign national spouse to travel to the USA and live with their US citizen spouse while they are waiting for the immediate relative immigrant petition processing to be completed. Upon entry as a nonimmigrant K-3 the foreign national spouse may file to adjust status to Lawful Permanent Residence.
It is noteworthy that application for the K-3 nonimmigrant visa by the foreign national spouse, who is married to a US citizen, must be filed and the visa must be issued by a US consulate in the country where the marriage took place. The amount of paperwork involved in filing for a K3 visa is almost double the amount required for a fiancé's visa.
K-4 Visas: Unmarried Children of Foreign National Spouses:
The unmarried children of a foreign national spouse who are under the age of twenty-one can be included in their parent's petition and will receive a K-4 visa that will allow them to travel to the US with the parent. No separate petition is required for them. However, if the child was 18 years of age or older at the time of the marriage of their parent to the petitioning US citizen spouse then, although the child can receive a K-4 visa and enter the U.S., that child cannot obtain a green card through the US citizen step-parent. The child's K-4 visa will simply expire after two years or when the child reaches the age of 21, whichever occurs first.
Qualification for the K-3 visa:
To qualify for the K-3 non-immigrant visa you must show that:
1)You are married to the US citizen who has filed a relative petition (Form I-130) on your behalf;
2)You must be seeking to enter into the U.S. to await the availability of an immigrant visa; and
3)The relative petition filed by your US citizen spouse must still be pending.
To qualify for the K-4 visa, the visa applicant must be a child under 21 years of age, of a person who qualifies as a K-3 visa holder.
Who Cannot Use the K-3 Visa?
The K-3 visa can only be obtained by the spouse of a US citizen. The wife of a permanent resident cannot receive a K-3 visa. Children of the foreign national spouse who are married or are over the age of twenty-one cannot receive the K-4 visa. If the marriage took place while the foreign national spouse was in the U.S. in another temporary visa category or was here on a visa waiver, the foreign national spouse must depart the US in order to be eligible to receive a K-3 visa.
Because of the complexity of the situation we recommend that you seek the guidance of an immigration professional before making any decision about marrying a foreign national who is currently in the U.S. on any visa other than a K-1 fiancé's visa which you sponsored.
Marrying a US Citizen in the US or Abroad:
There are different options available to foreign nationals depending on where their marriage took place. If the marriage took place outside the US, then you must generally obtain a.K-3 visa or wait for an immigrant visa to enter the US. As far as the US government is concerned, a marriage that takes place overseas is a valid and legal marriage provided it is recognized as a legal marriage by the government of the country in which the marriage occurred.
If you intend to get married in the US, you need to obtain a K-1 Fiancé Visa to enter the US, Upon entry as a K-1 you must marry your US citizen Fiancé within 90 days. and then you can immediately file for adjustment of status to get the green card based on the marriage to US citizen.
Filing a Petition for Alien Relative:
When pursuing a K-3 visa the US citizen spouse is required to file two petitions with the USCIS:
1)First, he or she needs to file a Petition for Alien Relative, Form I-130, with the USCIS. Upon receipt the USCIS will send a Notice of Action (Form I-797) This notice tells you that the USCIS has received the petition.
2)Second, he or she needs to file a Petition for Alien Fiancé), Form I-129F, for the foreign national spouse. This petition will also include any qualifying children.
Please note that after you arrive in the US on your K-3 visa, you must continue with the permanent residence process, which generally includes the filing of an adjustment of status application, Form I-485, with the USCIS.
Applying for a K-3 Visa:
The US embassy or consulate where the foreign national spouse of a US citizen will apply for a K-3 visa must be the country where their marriage took place. Once the K-3 petition has been approved the file is transferred to the US State Department for the visa processing. The National Visa Officer will advise you on the procedures that have to be followed for visa processing. The embassy or consulate will let you know any additional things required by that specific post, such as where you need to go for the required medical examination. The following is required for the application:
1)Two copies of form DS-156, Nonimmigrant Visa Application
2)One DS-156K, Nonimmigrant Fiancé) Visa Application form
3)Police certificates from all places lived in since the age of 16
4)Birth certificates for each applicant
5)Marriage certificate for foreign national spouse
6)Death and/or divorce certificates from any previous spouses
7)Medical examination (except vaccinations)
8)A passport valid for travel to the United States and with validity dates at least six months beyond the applicant's intended period of stay in the United States (unless country-specific agreements provide exemptions).
9)Two nonimmigrant visa photos, two inches/50 X 50 mm square, showing the full face, against a light background
10)Proof of financial support (Form I-134 Affidavit of Support may be requested)
The Affidavit of Support, Form I-864, is not required for the K-3/K-4 visa, but will be needed when the foreign national spouse files for adjustment of his or her status to permanent residency. The consulate has complete discretion in determining the types of documents acceptable for this purpose.
Validity and duration of stay on K-3 visa:
The K-3 nonimmigrant visa is a multiple entry visa, valid for two years.
Extension of stay on K-3 visa:
You may apply for an Extension of Stay while in the US on a K-3 spouse visa; this is done using a Form I-539, Application to Extend or Change Nonimmigrant Status. The application for an extension should be submitted to the USCIS at least 120 days prior to the expiration of your authorized stay. Extensions will be granted in two-year intervals.
Employment while in K-3 visa status:
A foreign national spouse in the US in K-3 visa status can accept employment in the US. You may apply for Employment Authorization (EAD) using Form I-765, Application for Employment Authorization. This can be submitted immediately upon arrival in the US, concurrently with your adjustment of status application, or after submitting your adjustment of status application. In addition to, or as an alternative to, seeking employment, you can pursue full- or part-time studies while waiting for the issuance of an immigrant visa.
Adjustment of Status:
After you arrive in the US, the foreign national spouse may apply for adjustment of status using Form I-485, Application for Adjustment of Status. It is not necessary to wait for the Form I-130 to be approved before you file the I-485.
Change of Status:
K-3 and K-4 visa holders cannot change their status to any other nonimmigrant visa category while in the US.
Social Security Number:
K-3 and K-4 visa holders will need to receive their EAD before they can apply for a Social Security Number. The Social Security Administration will not accept the K-3 or K-4 visa as proof of eligibility.
Travel outside the US:
As note above the K-3 and K-4 visas are multiple entry visas so the foreign national spouse and children can travel outside the US and return using their K-3 and K-4 visas respectively. A foreign national in K-3 of K-4 visa status can travel on their K-3/K-4 visa even after filing for adjustment of status and does not need to file for Advance Parole.
Pros and Cons of the K-3 visa:
Like every other nonimmigrant visa, the K-3 visa has advantages as well as some drawbacks. But overall the positive aspects win out over the negative ones. So that you can have a clear view and better understanding of the K-3 nonimmigrant visa category we have listed some of the pros and cons.
On K-3 visa, you may:
Reside in the US with your family while waiting for the approval of your immigrant visa petition
Apply for a work permit
Travel outside of the US on short trips and re-enter
Study in the US
On K-3 visa, you cannot:
Change to any other nonimmigrant visa status
Enter the US if you have been temporarily barred for previous violations of US immigration laws
Conclusion:
The new K-3 visa regulations have helped to substantially shorten the processing time for a foreign national spouse to get visa to live in the US with their US citizen family, from years to months. The actual processing time depends on the country in which the foreign national spouse is applying for his or her K-3 visa. The consulate where you must apply is controlled by where the foreign national spouse resides and where the marriage took place. The K-3 visa process can be complex and at time unwieldy. Any carelessness can cause unforeseen trouble during the processing of the K-3 visa, which would then make it difficult for you to identify, locate and resolve the problems.
As can be seen from this short overview of the K-3 process, the whole immigrant visa process involves a number of tedious steps. However you can bring your foreign national spouse to the US to live with you while waiting for the immigrant visa process to be completed, in the shortest possible time by seeking expert consultation from a qualified immigration attorney. It is therefore of high importance that you take great care and precautions in completing and filing your K-3 visa petition and application.
Source:VisaPro.com
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