IMMIGRATION: K-3 Visas - For overseas Spouses & Minor Stepchildren
with a pending I-130 Relative Petition.

_______________________________________________________________________________________

THE "K-3 and K-4" VISA CATEGORY

NOTE: Don't even think about it! . . . . . get off the Internet and go see a qualified immigration lawyer. At the present time Homeland Security is not processing K3 spousal visa petitions. Instead they are processing CR1/IR1 visa petitions. A CR1 visa will be issued by the Consulate if, at the issuance date, the couple has been married less than two years. An IR1 visa will be issued if they have been married two years or more on the visa issuance date.

BEWARE: Many immigration attorneys and "visa service" websites state that the K-3 spousal visa is an option, and if you call the USCIS or a Consulate they may tell you, "Oh yes, we are still issuing K-3 visas." The fact of the matter is K-3 visas have not been processed by USCIS since February of 2010. If you will call me, I will be glad to explain why the K-3 visas are no longer being processed. The fact that other so-called marriage visa experts are still advertising K-3 visas after these visas have not been an option for more than 3 years should tell you something about the "expertise" of those "experts".

History of the K-3 Visa: For many years, the processing of I-130 Relative Petitions by the U.S. Citizenship & Immigration Services (CIS) was so slow that an expedited method to reduce the separations of immediate family members of U.S. citizens was needed to shorten the waiting abroad for an immigrant visa. In response to this dilemma, Congress enacted a law that expanded the K visa status, formerly available only to fiance(e)s of U.S. citizens, to include the spouse of a U.S. citizen, who is waiting abroad for an immigrant visa, and the spouse's minor children. Because of recent shortened processing times of the I-130 Relative Petition by the U.S. Citizenship & Immigration Services, a K-3 visa is no longer of any advantage.

DO NOT BE CHEATED by an unscrupulous "immigration consultant" or a less than knowlegable immigration lawyer who does not understand the law and procedures of a K-3 visa. The Internet simply is not up to date in this area and in many areas of immigration law and procedure, which changes rapidly and without notice. Beware trying to educate yourself about U.S. immigration law and procedure over the Internet, or by calling the USCIS 800 number . . . those people on the phone know nothing about immigration law and procedure, but will always have an opinion. You are not paying for their advice and it is worth exactly what you pay for it.

In theory, the K-3 (K-4's for unmarried minor stepchildren) allows the approved applicant to enter the United States as nonimmigrant, reunite with the US citizen spouse and then apply for immigrant status after arrival in the USA. In the past, the advantage was saving time over the traditional Immigrant Consular Processing, as much as three months or more, depending upon the Immigration Service processing backlogs. There is no USCIS backlog today and therefore, the K-3/K-4 visa is  a "white elephant," a remant of the past, which is more costly and in fact saves no time in today's world.

The good news is that the CR1/IR1 visas include the issuance of a Green Card for your spouse soon after he or she arrives in the U.S. Thus the visa and Green Card processes combined actually costs less than they did under the previous K-3 spousal visa and also less than with a K-1 fiancee visa.

Requirements of a CR1/IR1 Visa

  1. The petitioner must be a U.S. citizen.
  2. The petitioner must be legally married under
    the laws of the country in which the marriage took place.
  3. The petitioner must prove that the marriage relationship is sincere.
  4. The American citizen must meet the minimum income requirement
    or have a cosponsor who meets it.
  5. If the marriage was by proxy, it must have been consummated prior
    to the filing of the visa petition.

Visas for Unmarried Children of Foreign Spouses

As long as the marriage occurred prior to the child's 18th birthday and the child's visa application is filed prior to the child's 21st birthday, the child is eligible for a CR2/IR2 immigrant visa, but a separate I-130 Relative Petition must have been filed and approved on behalf of each child. They do not qualify for derivitive status from their alien parent.

Process

U.S. Citizenship and Immigration Services (USCIS)

The CR1/IR1 visa petitions are filed at one of the two USCIS Centers that between them process all of the marriage visa petitions in the U.S. The Center which will process your CR1/IR1 visa petition is determined by the state in which you reside. If there are any missing documents or incorrect paperwork, you will receive a Request for Evidence ("RFE"). Each RFE will delay the approval of your CR1/IR1 visa petition, and ultimately the approval and issuance of your CR1/IR1 immigrant visa, by months.

National Visa Center (NVC)

When the USCIS has approved the CR1/IR1 visa petition, it is forwarded to the National Visa Center ("NVC") where original documents are reviewed, background checks are performed on both the petitioner and the beneficiary and an interview date is set. The NVC will forward the petition to the Consulate that will conduct the visa interview. The Consulate will not interview the foreign spouse until the NVC checks have been successfully completed.

U.S. EMBASSY (CONSULATE)

When the approved petition and background checks have been received by the U.S. Consulate having jurisdiction over the city in which the spouse is legally residing, the NVC will instruct the foreign spouse to undergo a medical exam at a clinic specified by the Consulate and to report for the visa interview on a specified date. If the foreign spouse passes the medical exam and the interview is successful, the CR1/IR1 spousal visa will normally be issued that day or the following day. There are many things that can delay or prevent the issuance of the CR1/IR1 visa. Listed in the order that they seem to occur:

  1. Failure to convince the Consular Officer that a
    bona fide relationship exists between the couple;
  2. Missing documents;
  3. Incorrect documents;
  4. Documents completed incorrectly;
  5. Inadequate English skills of foreign spouse;
  6. U.S. citizen cannot meet the minimum income requirement;
  7. Large age difference between the U.S. citizen and the foreign spouse.

All of the above can normally be avoided by hiring an immigration law firm with the experience that we have in handling these situations. Number 7 can be more of a problem with certain Consulates than with others, but the risk of a denial due to the age difference can certainly be reduced by adequate interview preparation.

Check with the Law Offices of David D. Murray to determine whether consular processing is necessary in your case, or whether you are eligible for stateside processing.

_______________________________________________________________________________________

Former K-3 Visa Eligibility:

To be eligible for a K-3 Nonimmigrant Visa, an applicant MUST:

1. Be the spouse of a U.S. citizen;

2. Have a Form I-130 (Petition for Alien Relative) filed on
    his or her behalf by his/her U.S. citizen spouse, that is pending
  
  (And therin lies the rub - I-130s are being processed so quickly
    now that by the time the K-3 petition would be approved, the
    I-130 Relative Petition will have been granted long before,
    making the K-3 moot and an unwise choice);

3. Pay the appropriate USCIS filing fee (that's more money out of your pocket) ;

5. Submit a completed Form I-693 (Medical Examination)
    to the Consular Officer at the time of visa issuance.

K-4 Visa Eligibility for Children:

To be eligible for a K-4 Nonimmigrant visa, the K-4 applicant MUST:

1. Be an unmarried child (under 21 years of age)
    of a K-3 visa applicant or holder;

2. Submit a completed Form I-693 (Medical Examination)
    to the Consular Officer at the time of visa issuance.

Applying for Immigrant Status The K-3 or K-4 nonimmigrant classification does not provide immigrant status. To obtain immigrant status, a K-3 or K-4 nonimmigrant must file an Application for Adjustment to Permanent Residence after arrival in the United States.

K-3 nonimmigrants may apply for Employment Authorization to work in the United States while they wait for their immigrant status to be approved.

                              Please see our Contact Page for our email address.

CLICK THE GREAT SEAL OF THE UNITED STATES OF AMERICA
TO RETURN TO THE TOP OF THIS PAGE

 

This web site is designed for general information only.
The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
You are encouraged to seek qualified legal counsel for advice regarding your individual legal issues.
Contents copyright David D. Murray 1998 - 2015 All rights reserved