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FAQ- K 3 and 4 for The Spouse of United States Citizen
to shorten the separation

immigration lawyers

The K-3 nonimmigrant visa is intended to shorten the physical separation between the foreign-citizen and U.S. citizen spouses by having the option to obtain a nonimmigrant K-3 visa overseas and enter the United States to await approval of the immigrant visa petition.  K-3 visa recipients subsequently apply to adjust status to a permanent resident (LPR) with the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) upon approval of the petition. Because the spouse of a U.S. citizen applying for a nonimmigrant K-3 visa must have a immigrant visa petition filed on his or her behalf by his or her U.S. citizen spouse and pending approval, a K-3 applicant must meet some of the requirements of an immigrant visa. It should be noted that under U.S. immigration law, a foreign citizen who marries a U.S. citizen outside the U.S. must apply for the K-3 visa in the country where the marriage took place.

 

Question #1:Can any family member get the K-3 or 4 visa or who can and who can't get it?
Question #2:Is this the same thing as a fiance visa but only for married people instead?
Question #3:How do I qualify for a K3 visa?
Question #4:Is it possible to have K-3 visa processed in a country other than where the marriage took place?
Question #5:What is the process for obtaining the K3 or 4 visa?
Question #6: While present in the US pending green card status, may a K-3 holder travel and work? If so, are extra papers needed?
Question #7: I am a citizen of the US about to be engaged to an Brazilian. Will a religious ceremony after the K-1 is obtained render the K-1 invalid and/or is it faster to simply get the official marriage certificate after the religious ceremony and apply for K-3?

 

Question #1: Can any family member get the K-3 or 4  visa or who can and who can't get it?

Answer: On August 14, 2001 the INS issued regulations implementing the K-3 and K-4 temporary visa categories that were contained in the LIFE Amendments which were enacted on December 21, 2000. The only persons eligible for K-3 visas are spouses of US citizens. The only people eligible for K-4 visas are unmarried children under 21 years of age of US citizens.

 

Question #2: Is this the same thing as a fiance visa but only for married people instead?

Answer: At first glance, the requirements for these two types of visas seem to be very similar, but the process of obtaining K-3 and K-4 visas is much more complex and convoluted than simply obtaining a fiance visa.

 

Question #3:   How do I qualify for a K3 visa?

Answer: To qualify for the new K nonimmigrant visa (known as the K3 NIV),the applicant for the visa must prove:

  • his/her marriage to a U.S. citizen is valid, and

 

  • he/she is the beneficiary of a petition (I-130) already filed with the US Immigration and Naturalization Service (INS) as the spouse of a U.S. citizen, but which petition has not yet been approved by INS, AND

 

  • he/she is also the beneficiary of a special petition filed with and approved by INS in the United States, AND

 

  • he/she wishes to enter the United States to await the approval of the I-130 petition by INS or the availability of an immigrant visa.

All four qualifications must be met before overseas processing of the request for the K visa can begin.

If an I-130 petition for the spouse is already at the overseas post, then an immigrant visa will be processed instead of the nonimmigrant K visa. If an immigrant visa based upon the I-130 petition for the spouse has already been denied, then neither the spouse nor the spouse’s children may qualify for a K3 or K4 visa.



Question #4: Is it possible to have K-3 visa processed in a country other than where the marriage took place?
Answer: The law pertaining to the issuance of K-3 and K-4 visas is very specific as to where the visa must be issued. One can only obtain a K-3 or K-4 visa in the country where the marriage took place.

There are, however, two exceptions to the general rule:

1) If the marriage occurs in the United States, the applicant may apply for a K-3/K-4 visa in his home country since it is impossible to obtain a visa within the United States; and

2) If the couple is married in a country where there is no US Embassy, K-3 and K-4 visas may be issued at a consular post designated by the US State Department.

 

Question #5:  What is the process for obtaining the K3 or 4 visa?

Answer:  
1) Once the marriage takes place, an I-130 immigrant visa petition must be filed by the citizen spouse;

2) Once the spouse receives a receipt for the I-130 petition, he or she must file Form I-129F Non-Immigrant Visa Petition to the US Immigration and Naturalization Service, PO Box 7218, Chicago, Illinois 60680-7218; and

3) Upon the approval of form I-129F, the spouse and children may apply for K-3 and K-4 visas, respectively, at a consular post in the country where the marriage took place. 
 
Remember that there are two agencies involved in the K-3 and K-4 visa process: the INS and the State Department. The INS forms, including the I-130 Immigrant Visa Petition, the Biographical Information Form, the I-129F Non-Immigrant Visa Petition and the I-693 medical examination are all available at:

 
Question #6: While present in the US pending green card status, may a K-3 holder travel and work? If so, are extra papers needed?

Answer:Good question. K-3 and K-4 status, unlike fiance status which lasts for only 90 days, is valid for two years and under some conditions may be renewed. Although one may travel freely on a K-3/K-4 visa, the INS requires that K-3/K-4 visa holders (like K-1/K-2 visaholders) apply for Employment Authorization Documents (EAD) using Form I-765.


Question #7:
I am a citizen of the US about to be engaged to an Brazilian. Will a religious ceremony after the K-1 is obtained render the K-1 invalid and/or is it faster to simply get the official marriage certificate after the religious ceremony and apply for K-3?
Answer: US immigration laws provide that if a marriage is recognized as valid in the count where it took place, it is generally considered valid for purposes of immigrating one's spouse and children to the US.  Although the K-3/K-4 regulations are so new that we don't know how long the INS will take to approve visa petitions and forward them abroad.

Both sets of visas require that the INS approve a form I-129F Non-Immigrant Visa Petition and that the State Department issue the appropriate visa. However, only in the case of K-3/K-4 visas must the marriage have taken place, an I-130 Visa Petition be filed and the visa issuing post be limited to the country where the marriage took place. This would seem to make the K-3/K-4 visa issuing process more convoluted than the K-1/K-2 visa issuing process.   There is no guarantee that spousal petitions will be approved more readily than fiance petitions. However, if the US citizen spouse and his family travel abroad, take part in a religious wedding ceremony and the parties are legally married, this adds weight to the petition and it is not likely to be denied.


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