Each year, thousands of U.S. citizens marry foreign-born individuals and initiate the process for their spouses to obtain legal permanent residence process or the “green card” in the United States. It’s important to understand that there are different paths to the green card, and each depends on the circumstances of the marriage and where the foreign national currently resides.
The K nonimmigrant visas, also called the hybrid visas, allow a fiancé or a spouse of a U.S. citizen to enter into the U.S. and apply for permanent residence after entry. Depending upon whether you intend to marry within the U.S. or outside the U.S., your fiancé or spouse may apply for a K-1 visa or a K-3 visa.
A. K-1 Visa: Marrying Within The U.S.
The K-1 fiancée visa is available to foreign citizens who would like to marry American citizens and reside permanently in the U.S.
There are 3 main requirements for the K-1 visa:
a. You need to have met your foreign national fiancé personally within two years prior to filing the K-1 visa petition.
b. You and your foreign national fiancé must be eligible to marry and show proof of termination of prior marriages, if any.
c.You must be able to show that you intend to marry your fiancé upon his/her arrival in the U.S.
2. Duration & Extension of Stay
The K-1 visa holder is allowed entry into the U.S. for 90 days on a single-entry visa and must marry the U.S. citizen petitioner during that period. Your fiancé is not entitled to apply for Extension of Stay on K-1 visa. If the marriage does not occur within 90 days, the K-1 nonimmigrant must leave the U.S. or will be subject to removal.
3. Change of Status
Once the marriage occurs within the 90-day period, your fiancé needs to apply for Adjustment of Status to in order to obtain the green card. Your fiancé cannot change status to any other nonimmigrant visa category. If your fiancé after marriage leaves the U.S. before filing the I-485, then you need to file the Form I-130, Immigrant Petition for Alien Relative, and go through the entire immigrant visa process.
4. Application Process
You must file the K-1 fiancé visa petition with the U.S. Citizenship and Immigration Services (USCIS) service center that has jurisdiction over your place of residence. Once USCIS approves the petition, it forwards it to the U.S. Consulate where your fiancé will be applying for the K-1 visa. The petition is valid for a period of four months from the date of USCIS action, and may be revalidated by the consular officer. The U.S. Consulate will notify your fiancé when the approved petition is received and provide him/her with the necessary forms and instructions to apply for a K-1 visa.
5. Benefits of K-1 visa
Applying for a K-1 visa for your foreign fiancée has the following benefits:
a. The K-1 fiancé visa generally has a shorter waiting period compared to marriage-based immigration visa petitions
b. Your fiancé can apply for a work permit by filing Form I-765 and engage in employment upon entry to the U.S.
c. Children under 21 of your foreign fiancé can come to the U.S. on the K-2 dependent visa visa as long as they are listed on the fiancé visa petition.
d.Children who enter the U.S. on the K-2 visa can obtain the green card once you and your fiancé marry regardless of how old the child is, as long as he or she is under 21. This is not true of the normal immigrant visa process with the Form I-130.
DID YOU KNOW?
You cannot sponsor your step-children for permanent residence unless your marriage takes place before their 18th birthday.
B. K-3 Visa: Marrying outside U.S.
The K-3 spouse visa allows spouses of U.S. citizens to enter the U.S. in a nonimmigrant visa category while waiting abroad for an immigrant visa.
To apply for K-3 visa, the foreign national should marry the U.S. citizen and wanting to enter the U.S. to await the approval of immigrant petition.
You must have filed Form I-130, Petition for Alien Relative, on behalf of your foreign national spouse with the USCIS before filing for K-3 petition. Proof that you have filed the I-130 must be submitted with the Form I-129F.
Your spouse will be admitted into the U.S. on K-3 visa for an initial period of two years. Your spouse can remain in the U.S. while waiting for the approval of the I-130 and is able to apply for lawful permanent residence status (adjustment of status) instead of having to wait outside the U.S. Your spouse may apply for Extension of Stay no more than 120 days prior to the expiration of the K-3 status until the green card is granted.
Your spouse is not entitled to Change Status to any other nonimmigrant visa category. Your spouse should apply for Adjustment of Status as soon as possible after entering the U.S.
You must file the I-130 immediate relative petition on behalf of your foreign national spouse with the USCIS service center that has jurisdiction over your place of residence. You will then receive Form I-797, Notice of Action, indicating that the USCIS has received the Form I-130. You will then need to file the K-3 petition with a copy of this form I-797 along with a USCIS Form I-129F to the following address:
U.S. Citizenship and Immigration Services
P.O. Box 660151
Dallas, TX 75266
Once the Form I-129F is approved, USCIS will forward it to the National Visa Center which will send it to the U.S. Consulate so that your foreign national spouse can apply for the K-3 visa.
It should be noted that if the National Visa Center receives the approved I-130 petition from USCIS before the approved I-129F, they can only process the immigrant visa application from that point and cannot process a K-3 visa application.
a. Your spouse can apply for a work permit by filing Form I-765 and engage in employment.
b. Children of your foreign national spouse can accompany your spouse to the U.S. on the K-4 dependent visa as long as they are listed in the visa petition and are under the age of 21 years.
C. The Big Question – What Is The Best Option For Foreign Spouse To Enter U.S.?
There are four options for your foreign national fiancé or spouse to enter the U.S.:
1. Fiancé is already here in the U.S. and you get married
You can marry your fiancé, who has previously entered the U.S. and is in valid nonimmigrant status, and following the wedding, file for Adjustment of Status. However, your spouse may be denied the adjustment of status if he or she entered with a visa which was not dual intent (e.g. B-2, F-1, etc.) and is found to have entered the U.S. with the preconceived intent to immigrate.
2. Marry abroad and spouse enters on an immigrant visa
You may marry abroad and file an immediate relative visa petition after returning to the U.S. Adjudication of the petition generally takes three to eight months and then, after it is approved, the processing of the immigrant visa application may take an additional five to eight months.
Note: You may also file the immediate relative petition with the U.S. embassy or consulate in your foreign spouse’s home country under certain circumstances, which is generally quicker than filing it in the U.S.
3. Marry abroad and spouse enters on K-3 visa
You may marry abroad and file an I-130 immediate relative petition after returning to the U.S. On receipt of Form I-797, you may file I-129F with the USCIS. Approval of a K-3 petition may take three to six months and then, after it is approved, the processing of the K-3 visa at the consulate may take an additional two to four months.
You may file a K-1 visa petition for your fiancé to enter into the U.S. and marry within 90 days of his/her arrival. Pursuant to getting married you may file for Adjustment of Status for your fiancé. The advantages of the K-1 procedure are:
a. It is generally quicker than the marriage abroad and subsequent K-3 visa petition process which is often more time consuming.
b. There exists no risk of being refused admission as an intending immigrant like there is in the B-2 entry and marriage, and subsequent Adjustment of Status process.
Spouses of U.S. citizens are considered “immediate relatives” under U.S. immigration laws, and thus, are exempt from any numerical quota restrictions. However, the decision on when and where to marry requires a careful analysis of all the above options, comparing the processing times of the USCIS for I-130 and I-129F petitions and the time taken by the consulate in issuing the different visas.
With all the complexities involved in the immigration process, it is suggested that you consult with an immigration attorney to formulate the best strategy to bring your fiancé or spouse in the shortest possible time.
Contact our top immigration lawyers if you have any questions regarding any type of family based immigration including K-1 visas, K-3 visas and green card process. We will be happy to assist you.
We wish you a happy married life!
What VisaPro Customers Are Saying
I would have no hesitation recommending Visapro. They dealt with my case professionally and I appreciated the way they made themselves available over the phone when I needed clarification or to ask a question………. I am very happy I chose them to manage my visa application and grateful for their support right through to successfully acquiring my Green Card.”