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K-3 Visa for Spouses of U.S. Citizens

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

If you are a U.S. citizen who has married an alien (same-sex or opposite-sex) and have filed a petition for your spouse's classification as an immediate relative, you may obtain a K-3 visa for your foreign-born spouse, so that he or she may join you in the United States while awaiting the processing of the petition for immediate relative classification.

Image of a couple hugging right after accepting the marriage proposal

To obtain a K-3 visa for your spouse, you must file a Petition for Alien Fiancé (Form I-129F), together with your petition for immediate relative classification (Form I-130), and all supporting documents and fees, with the USCIS in the United States.  Once that petition is approved, the USCIS will send the approved petition to the National Visa Center (NVC). The NVC will collect the required documents and fees from you and will forward the file to a U.S. consulate for consular processing.

Your spouse will have an interview at the designated U.S. consulate. Assuming all goes well, the U.S. consulate will issue a K-3 visa and your spouse will come here to await processing of the I-130 petition and subsequently an application for adjustment of status.

To receive permanent residence status (green card), your spouse must file an Application for Adjustment of Status (Form I-485). Initially your newly married spouse will receive a conditional permanent residence and that condition must be removed in due course.  See Removing Condition on Residence Based on Marriage.

Upon arrival in the United States, your spouse may file for adjustment of status to receive permanent residence status (green card). If the underlying I-130 petition is not approved by then, your spouse should attach a copy of your receipt (Form I-797), showing that you have filed Form I-130, to the adjustment of status application.

What are the requirements for K-3 visa?

To qualify for K-3 visa, you and your spouse must be legally married and you must have filed an immediate relative classification (Form I-130) for your spouse.  The immediate relative petition (I-130) need not have been approved at the time you file your K-3 visa petition (Form I-129F). You may attach the USCIS receipt, showing that you have filed the I-130 petition, to your petition for K-3 visa (I-129F).  Alternatively, you may file both Forms I-129F and I-130 together.  Both documents would require additional forms and extensive documentation regarding your relationship.

To see when a marriage is recognized for immigration purposes and how you can prove your marriage is bona fide, see Recognition of Marriage and Its Bona Fide for Immigration Benefits.

To see the current USCIS fee schedule, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

Would it be beneficial to apply for K-3 visa?

Congress authorized the issuance of this visa, to allow U.S. citizens obtain a K-3 visa for their foreign-born spouses, so that their spouse may join them in the United States sooner than it would take to process an immediate relative classification petition. See INA § 101(a)(15)(K)(ii). In practice, however, applying for this visa has limited utility.  The USCIS processing time table shows that both I-129F (K-3) and I-130 (immediate relative) petitions are processed in about the same time.

Furthermore, upon approval, the USCIS sends these petitions to the National Visa Center (NVC) for consular processing. The NVC, however, will administratively close the K-3 file when it receives the approved I-130 petition.  “If the NVC receives both an approved I-130 petition and an approved I-129F petition [, t]he nonimmigrant K-3 visa case will be administratively closed.”  See U.S. Department of State's Information on Nonimmigrant Visa for a Spouse (K-3).  In short, the instances where K-3 visa will have any practical utility are rare.

What are the restrictions on K-3 and K-4 visas?

The following restrictions apply to K-3 visa holders and their children who hold K-4 visas.

  • K-3 and K-4 visa holder are admitted into the United States for a 2-year period.  As long as the underlying immediate relative classification petition or a corresponding adjustment of status application is pending, K-3 and K-4 visa holder may renew their status in 2-year increments.
  • Children holding K-4 visa are admitted into the United States for two (2) years or until they reach the age of 21. However, if you (the U.S. citizen petitioner) file a separate I-130 petition on their behalf, they would benefit from the protections of Child Status Protection Act (CSPA).
  • A K-3 visa holder's authorized stay automatically expires 30 days after any of the following events: (a) USCIS' denial or revocation of Form I-130 petition, (b) USCIS' denial of K-3 visa holder's adjustment of status application, or (c) termination of the underlying marriage through divorce or annulment.
  • K-4 status automatically expires when the K-3 status expires.
  • K-3 or K-4 nonimmigrant visa holders cannot change status in the United States to another nonimmigrant visa category.
  • Cildren holding a K-4 visa cannot marry until they adjust their status.  If they do, their status automatically expires in 30 days.

What level of financial support do I need to show to support the K-3 visa application of my spouse?

When filing petitions for your spouse (K-3) and stepchildren (K-4), you need to file Form I-864 (Affidavit of Support under Section 213A of the INA) to show your financial ability to support your family. Form I-864 must show that your income is at least 125 % of the Federal Poverty Guidelines.

Note that you do not need to file Form I-864 with your initial classification petitions, which are filed with the USCIS. Form I-864 must be presented to the U.S. consulate during the consular processing.

Can I apply for immigration of my spouse's children under K-4 visa?

Your spouse's children (your stepchildren) should be listed on the petition for immediate relative classification (I-130) and Petition for Alien Fiancé (Form I-129F).  The children, who are unmarried, under the age of 21, and otherwise admissible to the United States, will be derivative beneficiaries of the petitions and may receive K-4 visas. Note that you must have established a stepchild/stepparent with the children (through marriage to their foreign-born parent) before the children reached the age of 18. They must be unmarried and under 21 at the time they actually enter the United States and at the time they adjust their status (see below regarding the children's adjustment of status).

Under the Immigration and Nationality Act (INA), when the children come to the United States as derivative beneficiaries of a K-3 visa holder (or as a child of your spouse who is the beneficiary of an immediate relative petition), they are deemed to be your stepchildren under INA §101(b)(1)(B), which requires them to have been less than 18 years of age at the time of your marriage to their foreign-born parent.

Once the children are in the United States, they may file for adjustment of status to receive permanent residence status (green card). If the underlying I-130 petition is not approved by then, they should attach a copy of your receipt (Form I-797), showing that you have filed Form I-130, to their Adjustment of Status Application.

If you make a notation on the child's application for adjustment of status that the child is in danger of “aging out” (i.e., reaching 21 before the adjustment application may be adjudicated), the USCIS may expedite processing of the child's application. There is no guarantee that the USCIS may do so or, if they do, the process would complete in time.  Unfortunately, premium processing is not available for adjustment of status applications.

It is important to file a separate Form I-130 for each of the children. If the approved I-130 petition reaches the Department of State before a K-3 visa is issued to your spouse, the consulate will halt the processing of the K-3 visa and instead will proceed with the I-130 petition, which would allow your spouse to receive an immigrant visa.  The processing of any K-3 or K-4 visa will halt at that time. If your stepchildren do not have an approved I-130 petition by that time, they would not be able to immigrate with your spouse. Therefore, while not required, you should file separate I-130's for the children concurrently with the I-130 you file for your spouse. This will also help the children to benefit from the protections of the Child Status Protection Act (CSPA).

Finally, ensure that you list all children of your spouse on Forms I-130, I-129F, and other forms seeking biographical information, even if the children do not plan to immigrate to the United States. A variety of complications may arise in the future, if you fail to do so.

Can my spouse and stepchildren work in the United States?

The K-3 or K-4 visa by itself does not entitle your fiancé and stepchildren to work in the United States. However, upon admission to the United States, they may apply for Employment Authorization Document (EAD), using Form I-765. An Application for Employment Authorization Document may also be filed together with the Application for Adjustment of Status.

Can my spouse and stepchildren travel outside of the United States while on K-3 & K-4 visa?

Holders of unexpired K-3 or K-4 visa status may travel in and out of the United States.  They will not need an advance parole. If K-3 or K-4 visas expire, and adjustment of status is pending adjudication, your spouse and step children may request an advance parole, using Form I-131.

Under some circumstances, an individual returning from a trip to U.S. territories or possessions (such as Guam, Puerto Rico, U.S. Virgin Islands, American Samoa, Swains Island and the Commonwealth of the Northern Mariana Islands) is considered to have left the United States and to be making a new entry into the country. If your new spouse and former fiancé plans to travel to such destinations without an advance parole, please consult an attorney in advance.  See the USCIS and the U.S. Customs and Border Patrol statements regarding traveling outside of 50 states of the United States.

Related Topics:

Removing Condition on Residence Based on Marriage

Citizenship after Marriage to U.S. Citizen

Waiver for Battered/Abused Spouses, Children, & Parents

 

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