How to Obtain and Qualify for a K-3 Spouse Visa
Qualifying and obtaining a K Visa is a complex and fact specific process and the information below is a general overview. Please consult with an attorney at Theta Law Firm with your specific facts. An attorney at Theta Law Firm is invaluable in helping go through the bureaucracy and paperwork to obtain the most appropriate visa that will fit your needs and requirements. An attorney is vital to help guide a potentially qualifying individual and their dependents through the process of obtaining a K Visa (and ultimately permanent resident status) in a timely fashion that will not disrupt or interfere with their lives and futures.
Is the K-3 Visa for me?
The K-3 classification grants temporary Visa status allowing a foreign national married to a United States citizen to come to the United States while waiting to be approved for a Green Card[1]. K-4 status may be granted to any children under twenty-one years of age of the foreign national spouse seeking admission to the United States.
Requirements for K-3 Visa Filing
In order to obtain K-3 status, the United States citizen spouse must meet certain requirements on behalf of the foreign national spouse seeking admission to the United States.
The following requirements need to be met before applying for a K-3 Visa[2]:
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1. The petitioner is a United States citizen;
2. The individual seeking admission is married to the United States citizen;
3. Form I-130, Petition for Alien Relative has been filed on behalf of the foreign national spouse by the United States citizen petitioner.[3]
4. USCIS will send a Notice of Action (Form I-797) to inform you that they have received the petition.
5. Form I-129F, Petition for Alien Fiancé(e) should then be filed with a copy of Form I-797 attached.
Additionally, as of 2013, visa petitions of same-sex couples are treated in the same way as opposite-sex couples. For more information please contact an attorney at Theta Law Firm to guide you through the changes in immigration policy and the ramifications it may have on your particular situation.
What to do After you File the 129F Petition?
If Form I-130 is approved before or at the same time as Form I-129F, then there is no reason to proceed with a K-3 Visa because immigration status has been granted (a green card). However, if the I-129F is processed first and the I-130 is still pending the K-3 Visa becomes valuable in shortening the time the foreign national spouse and United States citizen spouse have to remain apart. The K-3 Visa essentially acts as way for the foreign national to be granted permission to enter the United States while waiting for approval of the immigrant visa petition (I-130).
So, if the I-129F Petition is approved and the I-130 is still pending the following steps are to be taken:
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1. After you submit the I-129F petition to the appropriate USCIS address[4], and the petition is approved, it is sent to the National Visa Center. National Visa Center will send the United States petitioner a letter letting them know that the file regarding the foreign national fiancé has been sent to a United States embassy or consulate where the marriage took place.
2. At this point, the foreign national fiancé should prepare for a Visa interview in the country where the marriage took place, including being fingerprinted and gather the following documentation:
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a. Fill out and submit Form DS-160 Online Nonimmigrant Visa Application (can be accessed through https://ceac.state.gov/genniv/). Make sure that you keep the confirmation page that you will have to bring with you to the interview at the embassy or consulate.
b. A valid passport
c. Birth certificate
d. Marriage certificate regarding the marriage between the foreign national and the United States citizen sponsor
e. Divorce or death certificates of any previous spouses (if applicable)
f. Police certificates from any country where you lived for six months or more
g. Medical examination documentation (will be provided detailed information before your interview)
h. Evidence that you will be able to financially support yourself or that you will be financially supported by your United States citizen fiancé petitioner (this may involve filling out Form I-134, Affidavit of Support by the petitioner)[5]
i. You will be required to provide color photograph of yourself taken within the last six months when submitting Form DS-160. For more information regarding the photograph requirements please go to http://travel.state.gov/content/visas/english/general/photos.html
j. Evidence of relationship with you United States citizen spouse
k. All applicable fees
You have successfully petitioned your spouse to be allowed in the United States. Your spouse was granted a visa after being interviewed at a United States embassy or consulate. Your spouse arrived in the United States. What happens now?
- As soon as your spouse arrives in the United States under the K-3 Visa, he or she may apply to adjust status to a permanent resident at any time by filing Form I-485, Application to Register Permanent Residence or to Adjust Status.[6]
- Form I-864, Affidavit of Support will need to be filed along with the adjustment of status, presenting evidence that you are able to financially support yourself or that your United States citizen spouse will be able to provide adequate support.[7]
The short answer is yes. After being admitted, the foreign national spouse can apply for permission to work by filing Form I-765, Application for Employment Authorization.[8]
Additionally, the foreign national can apply to extend the work authorization at the same time he or she files Form I-485, Application to Register Permanent Residence or to Adjust Status. This would be done by filing another I-765 form with the I-485 form.
Length of Stay
K-3 Visa status is valid for two years, but expires automatically in 30 days if any of the following takes place:
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1. USCIS denies or revokes the Form I-130 visa petition;
2. USCIS denies a Form I-485 filed by the K-3 nonimmigrant or Department of State denies the immigrant visa application filed by the K-3 nonimmigrant; or
3. Termination of the marriage through divorce or annulment.
Children of Foreign National Spouse K-3 Applicants
If the foreign national spouse you are petitioning be allowed into the United States has any unmarried children under the age of 21 they may accompany the spouse and acquire K-4 visa status. The United States citizen petitioner must include the names of the children on the initial I-129F petition. They do not need separate petitions. However, any children will need separate visa applications to be filed after the I-129F petition is approved. When Form I-130 is filed on behalf of the spouse, a separate I-130 also needs to be filed on behalf of any children (under 21 years of age) of the K-3 spouse in order for the child to be eligible for permanent resident status. Any children will also need to individually file for adjustment of status through I-485 and applicable fees will have to be paid for each after they are admitted into the United States.
*There are several specific intricacies when it comes to obtaining K-4 visa status for children of the foreign national spouse and ultimately obtaining permanent residency. Please consult with an attorney at Theta Law Firm regarding your specific situation in order to be advised as to the appropriate best steps that need to be taken in the visa and petition process.
What if I Want to Marry A Foreign National in the United States and Want That Person Admitted Into the United States?
If you want to marry your fiancé(e) in the United States and want them admitted to the United States for this purpose and eventually be allowed to receive permanent residence in the United States, a different process is followed from the one described above. Please read the article pertaining to K Fiancé(e) Visas on our site and consult with an attorney at Theta Law Firm to see how this could be done.
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[1] 8 C.F.R. § 214.2(k).
[2] Requirements are set out in 8 C.F.R. § 214.2(k).
[3] Form I-130, Petition for Alien Relative can be found at: http://www.uscis.gov/sites/default/files/files/form/i-130.pdf.
[4] For direct filing addresses for Form I-129F, see http://www.uscis.gov/i-129f-addresses.
[5] Form I-134, Affidavit of Support can be found at http://www.uscis.gov/sites/default/files/files/form/i-134.pdf.
[6] Form I-485, Application to Register Permanent Residence or to Adjust Status can be found at: http://www.uscis.gov/sites/default/files/files/form/i-485.pdf.
[7] Form I-864, Affidavit of Support can be found at: http://www.uscis.gov/sites/default/files/files/form/i-864.pdf. [8] Form I-765, Application for Employment Authorization can be found at: http://www.uscis.gov/sites/default/files/files/form/i-765.pdf.
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