K-1 Visa K-3 Visa - US Immigration Lawyer Services

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K-1 vs K-3 Visa Dilemma: When and Where to Marry
K-1 VS K-3 VISA DILEMMA: WHEN AND WHERE TO MARRY
A. The K category of nonimmigrant Visas
allow fiancé(e)s or spouses of U.S. citizen
to enter into the U.S. as “non immigrants”
and apply for permanent residence status
after their entry.
B. Below is a brief description and analysis of
the K-1fiancé(e) Visa and the K-3 spouse
Visa to help you decide which category is
right for you.
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K-1 Visa
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K-3 Visa
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#1. K-1 VISA
The K-1 fiancé(e) Visa is available to U.S. citizens
who would like to marry a foreign national living
abroad in the U.S. and then have the fiancé(e)
reside in the U.S. permanently.
A. Requirements
I. Have Met Previously
The U.S. immigration law requires that
you have met your foreign national
fiancé(e) personally within the two years
prior to filing the K-1 Visa petition.
Exceptions can be made for cultural
and/or religious reasons.
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II. Have The Freedom To Marry
Both you and your foreign national
fiancé(e) must be free to and have the
intention to marry. You must show that
all prior marriage have been terminated
(annulment, divorce or death), and there
are no prohibitions against the proposed
marriage (e.g., marriages that violate
existing laws).
III. File Form I-129F, Petition For
Alien Relative With USCIS
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IV. Must Marry Within 90 Days Of
Entry
After receiving the K-1 Visa, you must
marry your fiancé(e) within 90 days of
his/her entry in order for your fiancé(e)
to be eligible for permanent residence in
the U.S. without having to go back to
his/her home county.
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Important
The personal meeting requirement may be waived by the
Attorney General upon proof that compliance would:
# Result in extreme hardship on the U.S. Citizen; or
# Violate strict and long-established customs of your fiancée’s
foreign culture or social practice, as where marriages are
traditionally arranged by the parents of the contracting
parties and the prospective bride and groom are prohibited
from meeting subsequent to the arrangement and prior to
the wedding
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V. File Adjustment Of Status
If you and your fiancé(e) marry within 90
days of his/her entry, your new spouse
can file the “Adjustment of Status”
Application to formally apply for
permanent resident status or “the green
card.” At that time, he or she can also
file applications for a work permit
and/or travel permit.
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B. Additional Benefits
I. Accompanying Dependants
The minor, unmarried children of your
fiancé(e) may be issued a K-2 Visa
without having to file additional
paperwork. The cut-off date for issuance
of a K-2 Visa is one year from the date
of issuance of the K-1 Visa. Thereafter, if
you have married, an immediate relative
petition filed by you or second
preference petition filed by your spouse
is required for the dependent.
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II. Employment Authorization
Your fiancé(e) may apply for a Work
Permit immediately after entering into
the U.S. on K-1 Visa and before applying
for Adjustment of Status.
There is no need to wait for the I-130
approval. At that time, he or she can
also file applications for a work permit
and/or travel permit.
TI P
K-2 Dependents may be listed in the same
K-1 petition and don’t require a separate petition or
separate filing fee.
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C. Duration And Extension Of
Stay
I. Period Of Stay
Your fiancé(e) is authorized to stay in
the U.S. for 90 days on a K-1 Visa which
may only be used for a single entry.
II. Extensions
Your fiancé(e) is not entitled to apply for
Extension of Stay on a K-1 Visa.
TI P
If the marriage does not occur within 90 days,
the K-1 nonimmigrant must leave the U.S. or become
subject to removal.
K-2 Dependents are also ineligible to extend their stay in
the U.S.
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D. Change Of Status
I. Period Of Stay
Your fiancé(e) is not entitled to change
status to any other nonimmigrant Visa
category. After the marriage, your
fiancé(e) should apply for Adjustment of
Status to permanent resident status
based upon the marriage to you. K-2
dependents may also apply for
Adjustment of Status to permanent
resident status.
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Important
If the marriage is less than 2 years old on the date of the grant of
permanent residence, then the spouse (and any K-2 Dependents)
will receive a 2 year grant of “conditional” permanent residence. If
the marriage is more than 2 years old on the date of the grant of
permanent residence, the spouse (and any dependents) will
receive a full grant of permanent resident status.
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K-1 Visa (Challenges)
I
am a U.S. Citizen. My fiancée is a
Colombian, currently residing in Colombia. She has
My Case Scenario
never been to the U.S. before. We had first met in
Samuel Jones
Colombia about 8 months ago when I went there
on a brief business visit. Since then I have been
travelling to Colombia often to meet her. We would
like to get married in the U.S. this August. She has a
four year old son from her prior marriage that
ended in divorce. We would like her and her son to
be able to live in the U.S. after our marriage. What
are our options?
VisaPro Attorney Says (Solutions)
The K-1 fiancé(e) Visa permits a foreign-Citizen
fiancé(e) to travel to the United States and marry
his or her U.S. Citizen sponsor in the U.S. and
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complete the process of obtaining permanent
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residence while in the U.S. To be successful in
securing a K-1 Visa for your fiancée, you must be
able to show that you are a U.S. Citizen; both you
and your fiancé(e) are free to marry, meaning any
previous marriages have been legally terminated
by divorce, death, or annulment; you have met each
other, in person, at least once within 2 years of
filing your petition; and both of you intend to marry
within 90 days of your fiancée entering the United
States under the K-1 Visa. Your fiancée’s 4 year old
son can seek a K-2 Visa to come to the U.S.
To secure a K-1 Visa for your fiancée and the K-2 for
your fiancée's son, you must file a Form I-129F,
Petition for Alien Fiancé(e) with the USCIS. You
must make sure to include details of her son on the
Form I-129F. Once the Form I-129F is approved, it
will be sent to the National Visa Center (NVC), which
will process and forward it to the U.S. Embassy or
Consulate nearest to your fiancée's place of
residence in Colombia. The Embassy or Consulate
will invite your fiancée and her son to apply for their
K-1/K-2 Visas. The child's natural father may be
required to give permission for his son to leave the
country permanently. Once the K-1/K-2 Visas are
stamped in their passports, your fiancée and her
son will be able travel to the U.S.
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You must get married inside the U.S. within 90 days
of her arrival in to the U.S. Once married, she and
her son will be able to file their Green Card
applications from inside the U.S. through a process
called “Adjustment of Status.”
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Thomas Joy
#2. K-3 VISA
The K-3 Spouse Visa allows spouses of U.S.
citizens to enter the U.S. in a nonimmigrant Visa
category while they wait until they are able to
apply for lawful permanent residence status
(Adjustment of Status).
A. Requirements
I. Married To U.S. Citizen
To apply for K-3 Visa the foreign national
should be married to you, a U.S. Citizen,
and want to enter the U.S. to await the
availability of permanent residence.
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II. File Form I-130, Petition For
Alien Relative And Form I-129F,
Petition For Alien Fiancé(e)
You must have filed Form I-130, Petition
for Alien Relative, on behalf of your
foreign national spouse with the USCIS
for the purposes of an immigrant Visa
before being able to file Form I-129F to
apply for the K-3 Visa.
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III. File The Adjustment Of Status
Application
After entering on the K-3 Visa, your
spouse can file the Adjustment of Status
application based on the pending Form
I-130.
TI P
If the K-3 Visa applicant’s I-130 petition is
approved before or at the same time as the K-3 Visa
application, a K-3 Visa will not be issued, because the
consular post will simply go forward and adjudicate the
immigrant visa.
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B. Benefits
I. Accompanying Dependents
The minor, unmarried children of your
fiancé(e) may be issued a K-4 Visa
without having to file additional
paperwork.
II. Employment Authorization
Your spouse may apply for a Work
Permit after entering into the U.S. on a
K-3 Visa.
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III. Social Security Number
Your spouse may apply for a social
security number after entering the U.S.
on a K-3 Visa.
TI P
K-3 Visa Holders may seek to renew their
employment authorization
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C. Duration And Extension Of
Stay
I. Period Of Stay
Your spouse will be admitted into the
U.S. for an initial period of two years on
a K-3 Visa which can be used for
multiple entries.
II. Extensions
Your spouse may apply for an Extension
of Stay no more than 120 days prior to
the expiration of the K-3 Visa.
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Important
To be eligible for an Extension, the K-3 Visa Holder:
# Must have filed the I-485 or an application for an immigrant
Visa; or
# If the I-485 or application for immigrant Visa has not been filed,
must still be awaiting approval of a pending I-130;
# The foreign national must still be married to the U.S. Citizen
spouse who petitioned for the K-3 status. K-4 dependents may
also apply for Extension of Stay
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D. Change Of Status
Your spouse is not entitled to Change Status
to any other nonimmigrant Visa category.
Your spouse should apply for Adjustment of
Status to permanent residence upon
reaching the U.S.
TI P
K-3 status will terminate 30 days after
the occurrence of any one of the following:
# I-130 petition is denied; or
# Application for immigrant Visa is denied; or
# I-485 Adjustment of Status application is denied; or
# The K-3 spouse’s divorce from the U.S. citizen becomes
final.
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K-3 Visa (Challenges)
I am a naturalized U.S. Citizen. My fiancée is
from Philippines and we are getting married next
My Case Scenario
month in Manila. What would be the best visa
Mark de Castro
option that would allow her to join me in the U.S. at
the earliest after our marriage?
As a U.S. Citizen, you can sponsor your wife for
permanent residency by filing a Form I-130 with
USCIS along with evidence to prove your valid
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marriage. Once the I-130 is approved, it will be
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forwarded to the Department of State's National
Visa Center (NVC), which will then provide you with
appropriate instructions. After the necessary
documents are submitted and proper fees are
paid, an immigrant Visa interview will be scheduled
for your wife at a U.S. Consulate. Your wife will need
to schedule and complete her medical examination
and any required vaccinations before her Visa
interview. If the application is approved at the
consular interview, the immigrant Visa will be
stamped in her passport and she will be able to
enter the U.S.
The I-130 immigrant Visa petition process may take
anywhere from 8 to 12 months. You can attempt to
speed up the Green Card process by filing a
nonimmigrant K-3 Visa for your spouse. The K-3
Visa allows your spouse to come to the U.S. with a
nonimmigrant Visa so that she can complete the
process of obtaining permanent residence while in
the U.S.
To try to obtain the K-3 Visa, once you receive a
receipt from the USCIS confirming proper filing of
the I-130 petition, you must file Form I-129F with
the USCIS, along with the I-130 receipt notice.
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If the K-3 Visa petition is approved earlier than the I130 petition, the NVC will forward the K-3 Visa
petition to the U.S. appropriate Consulate, enabling
your wife to appear for a Visa interview and seek a
nonimmigrant K-3 Visa to travel to the U.S. while
the immigrant Visa application is still pending. If
the K-3 Visa is approved, your wife will be able to
travel to the U.S. sooner and live in the U.S. with you
while the rest of the Green Card process is being
completed.
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Thomas Joy
THE BIG QUESTION: WHICH ROUTE TO TAKE?
Both options have pros and cons that need to be considered when choosing the
option that’s right for you and your fiancé(e).
K-1
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K-3
K-1 Pros
K-3 Pros
K-1 Cons
K-3 Cons
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K-1 Pros
1. The total processing time of a K-1 Visa (I-129F
3. Once married, you don’t have to file the Form
Processing to issuance of the K-1 Visa) is usually
I-130, Petition for Alien Relative. Your fiancé(e),
shorter than the K-3 Visa processing or
now spouse, can directly file for the Adjustment
immigrant Visa processing. It usually averages
of Status to obtain the green card.
about 6-9 months.
4. The K-2 dependents are included on the I-129F
2. You can get married in the U.S. without risking an
(no additional application is needed) and can
“intending immigrant” refusal by trying to enter
file the Adjustment of Status application at the
the U.S. on a B-2 Visa or Visawaiver in order to
same time as the K-1 Visa holder.
get married.
K-1 Cons
1. Realistically, it is generally harder to prove that
2. After your fiancé(e) comes to the U.S., if you he
you and your fiancé(e) are in a bona fide
or she must leave before you can get married or
relationship leading to marriage than it is if you
before you can file the Adjustment of Status,
are already married.
then the only way for him or her to re-enter is to
file the Visa application again or file the I-130
and complete immigrant Visa or K-3 Visa
processing, respectively.
K-3 Pros
1. The total processing time of a K-3 Visa (I-130
3. Since the I-130 continues to be processed after
filing to I-129F Processing to issuance of the K-3
the issuance of the K-3 Visa or I-129F approval,
Visa) is usually shorter than immigrant Visa
the K-3 spouse can still decide to pursue
processing. It usually averages about 7-10
consular processing once the I-130 is approved
months.
without filing any additional paperwork.
2. As opposed to the K-1 Visa, once your spouse is
4. The K-4 dependents are included on the I-129F
here, he or she may travel for up to 2 years on the
(no additional application is needed) and can
multiple entry Visa issued by the consulate.
file the Adjustment of Status application at the
same time as the K-3 Visa holder. If going
through regular immigrant Visa processing, the
U.S. citizen spouse would have to file a separate
I-130 petition for each child.
K-3 Cons
1. Based on current rules, if an I-130 is approved
2. As opposed to immigrant Visa processing when
before or simultaneously with the K-3
your spouse will enter the country as a
application, then the K-3 Visa application
permanent resident, the K-3 spouse will have to
process will be closed and only the immigrant
file the Adjustment of Status application (along
Visa application will be processed. Current
with the attendant filing fees, which are more
processing times for the I-129F and the I-130 at
than immigrant Visa fees) and your spouse will
the USCIS Service Centers are about the same
have to attend another interview.
now so this is happening more often than not,
which means the U.S. citizen loses all the fees
paid for the I-129F.
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when and where to marry.
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VISAPRO ATTORNEYS
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A.R. Keshmiri
Over 36 years of immigration
Specialized expertise in EB-1
Over 12 years of immigration
law experience
and EB-2 NIW green cards
law practice
Near 100% success helping
Highly successful in securing
Thousands of cases handled
clients with immigration
O-1 Visas
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matters
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ABOUT VISAPRO
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immigration legal services at reasonable costs to companies and individuals around
the globe and today we are proud to say that we have succeeded. VisaPro offers services in the following areas:
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K-1 Visa K-3 Visa - US Immigration Lawyer Services

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