K-3 Visa Guide

History

The K-3 (spouse visa) and K-4 (step children visa) Visas were created by Congress as part of the Legal Immigration and Family Equity Act (the "LIFE Act"). The Life Act became law on December 21, 2000 and the USCIS enacted formal regulations to process K-3 and K-4 visas on August 14, 2001. The Life Act and USCIS regulations extended K visa benefits to the foreign spouses (K-3 visa) and minor step children (K-4 visa) of American citizens. Prior to the introduction of the K-3 Visa it was easier and quicker to bring a foreign fiancee to the U.S. than it was to bring a spouse. That situation represented a fundamental unfairness in immigration procedure.

K-3 Requirements

Pursuant to INA §101(a)(15)(K)(ii), there are three requirements for an alien to receive K-3 classification:

The principal alien must already be married to a United States citizen who has filed a family-based petition (Form I-130) on his or her behalf;

The same United States citizen spouse must be petitioning on the alien's behalf to obtain a K nonimmigrant visa (Form I-129F); and

The alien must be seeking the enter the United States to await the "availability of an immigrant visa." USCIS interprets this phrase to mean the approval of the adjustment of status application or application for an immigrant visa.

Form I-130 needs to be filed on behalf of the principal alien but the U.S. petitioner is not required to file a Form I-130 on behalf of the alien's children seeking K-4 nonimmigrant status, since K-4 aliens are dependent upon the K-3 for their status. However, it is recommended that Form I-130 be filed on behalf of any K-4 aliens in any event, since they will not be permitted to seek permanent residence until their I-130 petitions have been approved.

NOTE: K-4 aliens must be unmarried and under age 21 in order to continue to meet the definition of "child" under INA §101(b)(1).

K- 3 PROCEDURE

The first step in filing a K-3 Visa is the filing of an I-130 petition on behalf of the foreign spouse. Once the petitioner files the I-130 and receives the USCIS receipt the petitioner files the I-129F petition (making sure to include the I-130 receipt with the I-129F filing). The petition is reviewed and adjudicated by the USCIS. It is important to submit a substantial petition which documents the history of the relationship and the ongoing loving marriage between the American petitioner and foreign spouse.

Once the K-3 petition is approved by the USCIS the file is forwarded to the American consulate in the country where the marriage took place. The American consulate is responsible for reviewing the file, interviewing the applicant (foreign spouse) and issuing the K-3 and K-4 visas. It is important that the foreign spouse is well prepared for the interview and brings with her documentary proof of her ongoing relationship with the American petitioner. The key to obtaining a K-3 visa is proving at every step in the process that the petitioner and beneficiary have a loving ongoing marriage.

Adjustment of Status to Permanent Residency

The K-3 Visa is valid for two years after entry into the U.S. The K-3 Visa holder must file an I485 application to adjust status to permanent residency within two years of entering the U.S. on K-3 status.