FREQUENTLY ASKED QUESTIONS
1Q: What is the purpose of the K-3 non-immigrant visa?
A: The K-3 visa allows alien spouses to enter the United States to await "the availability of an immigrant visa." While visa numbers are of course not limited for spouses of U.S. citizens, the INS rule requires an alien who enters the U.S. on a K-3 visa to continue to pursue the immigration process by having an I-130 petition or an adjustment of status pending approval by INS. To ensure that K-3 visa holders are actively pursuing immigration, INS will grant only a two-year admission period when the K-3 visa holder enters the United States. INS will also grant employment authorization in two-year increments.
2Q: Who is eligible to receive K-3 non-immigrant visa status?
A: The alien spouse of the U.S. citizen who has filed an I-130 petition for an immigrant visa (IR1--immediate relative, first preference) on behalf of the alien. The alien spouse must be seeking to enter the U.S. to await the availability of an immigrant visa.
3Q: What are the steps to obtain a K-3 visa?
A: To obtain K-3 status for an alien spouse, the U.S. citizen petitioner must first file an I-130 petition with INS in the United States. The U.S. citizen petitioners must also file a second petition, the I-129F, with the INS in the U.S. on behalf of the alien spouse.
Confirmation of INS approval of the I-129F petition is required before a K-3 may be issued and will be relayed to overseas posts by the National Visa Center. If the marriage occurred abroad, a K3 visa must be issued in the country where the marriage took place. The U.S. citizen petitioner must also file a second petition, the I-129F, with the (INS) in the U.S. on behalf of the alien spouse.
4Q: How do I qualify for a K-4 non-immigrant visa status?
A: To qualify for K-4 issuance, an applicant must be the minor, unmarried child under 21 years of age of a qualified K-3 visa applicant. The U.S. citizen who files an I-129F petition for an alien spouse does not have to file a separate I-129F petition for a child of his/her spouse. These children should be listed on the I-129F petition for the spouse. While the U.S. citizen must also file an I-130 petition for the alien spouse, there is no requirement to file a Form I-130 immigrant visa petition on behalf of the alien's children seeking K-4 nonimmigrant status, since K-4 is merely a derivative nonimmigrant classification.
5Q: If the child is not named on the I-129F petition, will that be a problem?
A: The K-4 visa will not be denied because the child's name is not listed on the I-129F petition as long as it can be established that he/she is the minor, unmarried child of the applicant issued a K-3 visa.
6Q: Can a consular officer approve the I-129F visa petition?
A: No. The I-129F must be approved by INS in the United States. Neither consular officers nor INS offices overseas are delegated the authority to approve these petitions.
7Q: Which INS office processes K-3 and K-4 petitions?
A: INS has a new Service Center designed to handle the LIFE Act petition, which include V, K-3 and K-4 categories. The new Missouri Service Center (MSC) will adjudicate all I-129F petitions for K-3 visas.
8Q: Where will the National Visa Center (NVC) send the approved petition file?
A: The NVC will send the case to the country where the marriage took place.
9Q: What do you do when the American Embassy or Consulate in the country where the marriage took place does not issue visas?
A: For those applicants who wed in countries where there is no U.S. visa-issuing post, the K-3/K-4 visa applicants should apply at the consular post designated to handle "homeless" immigrant visa cases for nationals of that country.
10Q: If I was married in the United States to an U.S. Citizen and I am now in the U.S., what do I do?
A: If the applicant is already in the United States, the applicant should apply to INS for an adjustment of status to legal permanent resident.
11Q: What documents are required for the K-3 and K-4 visas?
A: Required Documents:
2 copies of the DS-156 application form
Local Police Certificate
Birth Certificates for each K-3 and K-4 visa Applicant
Local Marriage Certificate for the Principal Applicant
Standard Immigrant Visa Medical Examination except Vaccinations
12Q: What about the I-864, Affidavit of Support?
A: K-3 and K-4 visa applicants do not need to submit the Form I-864, Affidavit of Support, until they adjust status to legal permanent resident in the U.S. The Form I-134, Affidavit of Support for non immigrant visas, may bee deemed appropriate by the consular officer.
13Q: What is the fee?
A: There is a $65.00 machine readable visa (MRV) fee per applicant.
14Q: For how long is the I-129F petition valid?
A: The I-129F petition is valid for four months from the date of INS approval date. If the petition has expired, the consular officer may revalidate the petition for an additional four months.
15Q: What if I had been out of status?
A: K-3 and K-4 visa applicants are subject to the 3-year bar if they accrued more than 180 days of unlawful presence in the United States. There is a 10-year bar if they accrued one year or more of unlawful presence. However, the applicants are eligible to apply for a waiver.
16Q: How does a K-4 child adjust status in the United States?
A: The K-4 child will not be able to file for adjustment of status in the United States until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence.
17Q: Can those with K-3 and K-4 visas change to another non-immigrant visa category in the United States?
A: K-3/K-4 cannot change status in the United States to another non-immigrant visa category.
18Q: Can I travel and re-enter the U.S. on my K-3 or K-4 visa?
A: Aliens present in the United States in a K-3 or K-4 nonimmigrant visa status can travel outside of the United States and return using their K-3/K-4 visa. If they have filed for adjustment of status in the U.S. prior to departure from the U.S., INS will not presume that the departure constitutes abandonment of an adjustment application.
How do I qualify for a K visa?
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.
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