UNDERSTANDING THE BASICS OF K-3 VISAS

K-3 VISAS(Pending Spouse Petition Visas)

The K-3 visa category is a relatively "new" visa category created by the LIFE Act of December 21, 2000. The K-3 visa allows the spouse of a U.S. citizen, and their children, who are the beneficiaries of pending or approved I-130 petitions to be admitted initially as non-immigrants and later adjust status to Legal Permanent Residence after arriving in the United States or, at their option, return to their home country for consular processing on their immigrant visa when their immediate relative case is ready to finalize. Before the effective date of the LIFE Act, aliens living abroad who were married to a U.S. citizen were required to obtain an immigrant visa outside the U.S. before they could be admitted to the United States. Even though spouses of U.S. citizens are not subject to numerical limitations on visa issuance and do not have to wait for a "current" visa number as in the case of preference relatives, the alien spouse historically had to wait up to a year, or more, for the USCIS to approve the petition and DOS to issue the visa. The creation of the K-3 (and K-4 for dependents of K-3's) visa was intended to avoid this delay in reuniting families and to speed their entry into the US. Processing of K-3 visas is very similar to K-1 visas but there are several important differences as discussed below. Spouses of U.S. citizens (and their unmarried children, under the age of 21) may be eligible for the K-3 or K-4 visa.

Under the LIFE Act there are three (3) requirements for K-3/ K-4 eligibility:

  • The alien beneficiary must already be married to a U.S. citizen, and;
  • The U.S. citizen spouse must have filed an I-130 petition on behalf of his or her alien spouse with USCIS to obtain an immigrant visa, and;
  • A Form I-129F Petition must have been filed with USCIS and approved.

Eligibility for K-4 status derives from the principal's eligibility for K-3 status (similar to the K-1/ K-2 relationship).

There are practical differences between K-1's and K-3's which should be considered in deciding whether to pursue a K-1 or a K-3 filing (assuming that the couple are not yet married and therefore have a choice).

  • First, once an I-130 immigrant petition is approved, a K-3 (and K-4) beneficiary may use either consular processing or Adjustment of Status. A K-1 (and K-2) beneficiary may use only adjustment of status. If the couple resides in a U.S. jurisdiction where processing time on adjustment of status applications is very slow, it may well be cheaper and quicker to utilize consular processing in order to convert to immigrant (green card) status.
  • Second, the LIFE Act allows issuance of an K-3 visa only in the event that an immigrant visa is "unavailable". However, to allow the maximum number of people to take advantage of the K-3 visa, the Department of State has determined that, for purposes of the LIFE Act only, an immigrant visa will be considered "available" only if the I-130 has been approved and the approval notice has been received by the Consular post at which the K-3 must be filed. If the I-130 may have been approved, but has not yet actually been received at the Consular post, the Consular officer should ask the applicant if they want the officer to determine if the approved petition has been received by the National Visa Center (NVC). If the applicant so wishes and the approved petition has been received by the NVC, the consular officer should offer the applicant an opportunity to process for an immigrant visa rather than a K-3 visa.

NOTE: The utility of K-3/K-4 visas varies substantially over time depending on both the processing times for I-130 petitions and processing times for K-3/K-4's. There is no question that, at the time of enactment of the LIFE Act, the K-3 visa was a Godsend for many spouses looking at as much as a 2-3 year wait before they could enter the US on an immigrant visa. In the intervening years, the processing time on I-130 petitions has dropped dramatically to approximately 10-14 months depending on the country of residence of the Beneficiary. At the same time, processing times on K-3 visas have gradually increased. In some cases, the expense of filing at least one additional case in order to obtain an entry 3-4 months faster may be worth it. In other cases, couple's may reasonably decide that streamlining their case, and saving the additional expense of filing additional cases adequately offsets the few additional months wait. This is an individual decision.

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