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K3 Spouse Visa : Pros and Cons?
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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 of US citizen 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 US citizen. The new K3 visa regulations were designed with a view to shorten the processing time for bringing a K3 spouse to the US from years to months, a goal that for the most part has been achieved

The The K3 Spouse Visa and K4 Dependent Visa – an overview:

  1. K3 Spouse Visa:
    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 fiancée visa.

  2. 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 K4 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 K4 visa and enter the U.S., that child cannot obtain a green card through the US citizen step-parent. The child's K4 visa will simply expire after two years or when the child reaches the age of 21, whichever occurs first.

    To qualify for the K4 visa, the visa applicant must be a child, under 21 years of age, of a person who qualifies as a K3 visa holder. Children of the foreign national spouse of US citizen, who are married or are over the age of twenty-one cannot receive the K4 visa.
CASE SCENARIO
Juan, a naturalized citizen of the US, got married in his hometown in Mexico last week. Upon returning to the US he started the immigrant visa process to bring his new wife to the US. Juan, having gone through the immigration process himself, contacted an immigration attorney before going to Mexico to get married. He found out that he will have to file a Petition for Alien Relative for his wife once he gets married. He also found out that it could take several months for the USCIS to approve the petition and for his wife to get her immigrant visa to travel to the US. But the attorney told him that there is still hope, through the K-3 visa. He said that with a K-3 visa his spouse could come to the US to wait for the visa processing to be completed. Based on this advice Juan took several forms with him that his wife would need to complete and sign. That way he is able to save additional time not have to send the forms back and forth in the future.  With all the completed forms, and having obtained the copies of civil documents (birth certificates and marriage certificate) he needed for the petition process, Juan was now ready to file the petitions and bring his wife to the US to live with him.

Qualifications for the K3 Spouse Visa:

To qualify for the K-3 non-immigrant visa you must show that:
  • You are married to the US citizen who has filed a relative petition on your behalf;
  • You must be seeking to enter into the U.S. to await the availability of an immigrant visa; and
  • The relative petition filed by your US citizen spouse must still be pending.
Who Cannot Use the K-3 Visa?

The K3 visa can only be obtained by the foreign national spouse of US citizen. The wife of a permanent resident cannot receive a K3 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 K3 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 K1 fiancée visa which you sponsored.

Procedure for obtaining the K3 Spouse Visa

  1. 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 U S. As far as the U S 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 V isa to enter the US, Upon entry as a K 1 you must marry your US c itizen Fiancé within 90 days and then you can immediately file for adjustment of status to get the g reen c ard based on the marriage to US c itizen.

  2. Filing a Petition for Alien Relative:
    When pursuing a K 3 visa the US c itizen s pouse is required to file two petitions with the USCIS :
    • First, he or she needs to file a Petition for Alien Relative, F orm I-130, with the USCIS. Upon receipt t he USCIS will send a Notice of Action (Form I-797). This notice tells you that the USCIS has received the petition.
    • Second, he or she needs to file a Petition for Alien Fiancé (e), F orm I-129F, for the foreign national spouse. This petition will also include any qualifying children.

    Please note that a fter you arrive in the U S on your K 3 spouse visa, you must continue with the permanent residence process, which generally includes the filing of an a djustment of status application, Form I-485, with the USCIS.

  3. Applying for a K3 Spouse Visa:
    The US embassy or consulate where the foreign national spouse of a UScitizen will apply for aK3 visamust 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 Office 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:

    • Two copies of form DS-160, Nonimmigrant Visa Application
    • Police certificates from all places lived in since the age of 16
    • Birth certificates for each applicant
    • Marriage certificate for foreign national spouse
    • Death and/or divorce certificates from any previous spouses
    • Medical examination (except vaccinations)
    • A passport valid for travel to the United States and with validity dates of at least six months
    • Two nonimmigrant visa photos, two inches/50 X 50 mm square, showing the full face, against a light background
    • 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 s tatus to permanent residency. The consulate has complete discretion in determining the types of documents acceptable for this purpose.

After Admission into the US
  1. Validity, Duration of stay and Extension of Stay on K3 visa:
    The K3 nonimmigrant visa is a multiple entry visa, valid for two years. You may apply for an Extension of Stay while in the US on a K3 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.

  2. Employment while in K3 visa status:
    A foreign national spouse in the US in K3 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.

  3. 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.

  4. Change of Status:
    K3 and K4 visa holders cannot change their status to any other nonimmigrant visa category while in the US.

  5. Social Security Number:
    K3 and K4 visa holders will need to receive their EAD before they can apply for a Social Security Number. The Social Security Administration may not accept the K3 or K4 visa as proof of eligibility.

  6. Travel outside the US:
    K3 and K4 visas are multiple entry visas so the foreign national spouse and children can travel outside the US and return using their K3 and K4 visas respectively. A foreign national in K3 of K4 visa status can travel on their K3/K4 visa even after filing for adjustment of status and do not need to file for Advance Parole.
Pros and Cons of the K3 Spouse Visa:

Like every other non immigrant visa, the K 3 visa has advantages as well as some drawbacks. But overall the positive aspects win out over the negative ones. S o that you can have a clear view and better understanding of th e K 3 non immigrant visa category we have listed some of the pros and cons. 

On K 3 visa, you may:

  • Reside in the U S with your family while waiting for the approval of your immigrant visa petition
  • Apply for a work permit
  • Travel outside of the U S on short trips and re-enter
  • Study in the U S

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

Summary:

The new K3 spouse visa regulations have helped to substantially shorten the processing time for a foreign national spouse to get a visa to live in the US with their US citizen family, from what was years to months. The actual processing time depends on the country in which the foreign national spouse is applying for his or her K3 visa. The consulate where you must apply is controlled by where the foreign national spouse resides and where the marriage took place.

The K3 visa process involves a number of tedious steps and can be complex and at time unwieldy. Any carelessness can cause unforeseen trouble during the processing of the K3 visa, which would then make it difficult for you to identify, locate and resolve the problems.

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 K3 visa petition and application.



The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. Contact VisaPro if you have any questions regarding the K-3 Visa, or need help in filing. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com/

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/


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