Immigration law allows the spouse of a U.S. citizen and his or her minor children to be admitted to the United States as nonimmigrants while they are waiting for the processing for permanent residence to be completed. It also allows them to obtain employment authorization while they are waiting.
To be eligible for a K-3 nonimmigrant visa, an individual must:
A child may be eligible for a K-4 visa if:
To obtain a K-3 or K-4 nonimmigrant visa, you (the U.S. citizen petitioner) must file two petitions with USCIS and apply for a visa from the U.S. Department of State.
If approved, USCIS will forward the I-129F to the U.S. Department of State for consular processing.
The non-citizen spouse and any minor children will then need to apply to the U.S. Department of State for the K-3 or K-4 nonimmigrant visa.
Benefits and Limitations of K-3/K-4 Nonimmigrant Visa
The benefits of the K-3/K-4 visa include:
The limitations of the K-3/K-4 nonimmigrant visa include:
Automatic Expiration of a K-3 Nonimmigrant Visa
A K-3 visa holder's authorized stay automatically expires 30 days after any of the following events:
If Your Child Turns 21 Before Obtaining Immigrant Status
Holders of K-4 nonimmigrant visas will be admitted to the United States for 2 years or until the day before their 21st birthday, whichever is shorter. The K-4 nonimmigrant visa holder's status will expire when he or she turns 21. If the K-4 nonimmigrant visa holder has a pending application for adjustment of status, he or she may continue to be eligible for adjustment of status under the Child Status Protection Act.
If Your Child Marries Before Being Issued an Immigrant Visa
The K-4 nonimmigrant visa holder’s status automatically expires 30 days after he or she marries.
Obtaining a K-4 Visa for a Child of Your Spouse
In order for a child to obtain a K-4 nonimmigrant visa, there is no requirement that a separate immigrant petition (Form I-130) be filed on the child’s behalf. However, a separate Form I-130, filed on the child’s behalf, is required for the child to adjust status.
Advance Parole for K-3 or K-4 Family Members
Applicants presently in the United States in a K-3 or K-4 nonimmigrant classification may travel outside the United States and return using their nonimmigrant K-3 or K-4 nonimmigrant visa. The only time advance parole is necessary is if the K-3 or K-4 nonimmigrant status has expired and the applicant has an adjustment of status application that remains pending.
Changing to Another Nonimmigrant Visa Category
K-3 or K-4 nonimmigrant visa holders cannot change status in the United States to another nonimmigrant visa category.
Affidavit of Support
Form I-864, Affidavit of Support, is not required when applying for the K-3 or K-4 nonimmigrant visa. However, the K-3 or K-4 nonimmigrant will need to furnish evidence showing that he or she will not become a public charge while in the United States. You may opt to complete Form I-134, Affidavit of Support, to help demonstrate that your K-3 or K-4 nonimmigrant will not become a public charge while in the United States. When the K-3 or K-4 nonimmigrant visa holder applies for adjustment of status, he or she will adjust status as an immediate relative, and at that time will need to file Form I-864.
Expiration of K-3 Status While Applying for Adjustment of Status
The K-3 nonimmigrant visa holder can apply for an extension of status by filing Form I-539, Application for Extension of Stay, with USCIS no more than 120 days prior to the expiration of the K-3 nonimmigrant visa. By obtaining an extension of K-3 nonimmigrant status, your spouse will be able to leave the United States and return without advance parole. Your spouse may also choose to apply for advance parole based on the pending application for adjustment of status. If your spouse wants to apply for advance parole, he or she will need to file Form I-131, Application for Travel Document.
K-3 or K-4 Nonimmigrant & Lawful Status
K-3 and K-4 visa holders apply for adjustment of status as immediate relatives. They are subject to the same eligibility requirements as other immediate relatives.
K-3 or K-4 Status After Approval of an Application for Adjustment of Status
If adjustment of status is approved, you will become a permanent resident of the United States. If, at the time of approval, your marriage is less than 2 years old, the K-3 or K-4’s permanent residence is issued on a conditional basis. You and your spouse will then be required to file a Form I-751, Petition to Remove Conditions of Residence within the 90 day period prior to the expiration date on the green card.
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Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 35 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..