K Visas for Fiancé(e) or Spouse of U.S. Citizen
Long distance relationships can be difficult, costly and stressful, and even more so when the parties involved are in different countries. The logistical challenges facing couples and their families are further complicated when immigration issues and delays arise. Orner & O’Brien can assist couples and families to reunite in the U.S. by sorting through the options and creating a strategy to brings families together as quickly as possible.
K-1 Fiancé(e) of U.S. Citizen
Often called a “hybrid” visa, the K-1 visa is a non-immigrant (temporary) visa that allows a foreign national to enter the U.S. one time for the sole purpose of marrying a U.S. citizen fiancé(e). The couple must marry within 90 days of the foreign national’s entry into the United States on the K-1 visa. Once in the U.S. and married within that 90-day period, the foreign national spouse may apply for permanent residence and remain in the U.S. while the U.S. Citizenship & Immigration Services (USCIS) processes the application. If the marriage does not take place within 90 days of the foreign national’s entry into the U.S., or the foreign national marries someone other than the U.S. citizen who originally filed the K-1 fiancée visa petition, the visa status becomes invalid and the foreign national will be required to leave the United States. Similarly, if the foreign national fails to file an adjustment of status application within the 90-day period after entering the U.S. and later becomes eligible for permanent residence through another avenue, he or she may not adjust status in the U.S. and instead must apply for an immigrant visa at the appropriate U.S. consulate abroad.
To be eligible to apply for a K-1 visa, the petitioner must be be a U.S. citizen; the couple must have met in person within two years of the date of filing the petition (unless a waiver is granted); a bona fide intention to marry must exist; and the couple must have the legal ability to conclude a valid marriage in the U.S. within 90 days after the foreign national’s arrival.
In order to apply for a K-1 visa, the U.S. citizen petitioner must submit a petition and supporting documentation to USCIS on behalf of the foreign national fiancé(e), demonstrating the bona fide nature of their relationship. If the petition is approved, the foreign national’s file is then forwarded to the Department of State for additional processing and security checks. Once that process is complete, the file is then sent to the appropriate U.S. consulate, which sends additional instructions to the foreign national regarding the K-1 visa process and schedules the foreign national for a visa interview. If the visa interview is successful, the consulate will issue a K-1 visa to the foreign national and he or she may then enter the United States. The minor children (under 21) of a K-1 beneficiary may be granted K-2 visa status if they are accompanying or following to join their parent.
K-3 Spouse or Child of a U.S. Citizen
If a U.S. citizen marries a foreign national outside the U.S., the foreign national spouse and his or her unmarried children under 21 may enter the U.S. as non-immigrants in K-3 and K-4 visa status, respectively, while they are waiting for approval of a pending I-130 Petition for Alien Relative. It is important to note that a child who was above the age of 18 at the time when the marriage between the U.S. citizen and K-3 applicant occurred, may not obtain permanent residence as the beneficiary of a K-4 visa. In such a case, the child’s K-4 visa will simply expire after two years or when the child reaches the age of 21, whichever occurs first. K-3 and K-4 beneficiaries may also apply for employment authorization while they are waiting for processing to be complete.
To apply for a K-3 visa, the U.S. citizen spouse must submit a petition and supporting documentation on behalf of the foreign national to the U.S. Citizenship and Immigration Services (USCIS), showing that their relationship is bona fide and that the U.S. citizen spouse previously filed an I-130 petition on behalf of the foreign national. If the petition is approved, the foreign national’s file is then forwarded to the Department of State for additional processing and security checks. Once that process is complete, the file is then sent to the appropriate U.S. consulate, which sends additional instructions to the foreign national regarding the K-3 visa process and schedules the foreign national for a visa interview. It is important to note that the application for a K-3 visa must be filed, and the visa must be issued, in the country where the marriage took place. If the visa interview is successful, the consulate will issue a K-3 visa to the foreign national and he or she may then enter the United States to await the adjudication of the I-130 petition. Upon approval of the I-130 petition, the foreign national may then be eligible to submit an application to adjust status to permanent resident (“green card”) based on his or her marriage to a U.S. citizen.
Traditionally, the K-3 visa process allowed married couples to be united more quickly by permitting foreign spouses to come to the United States in an expedited manner, but today that is not necessarily the case. It is important to consult with legal counsel to determine if the K-3 visa is the best path for you. Which pathway is best suited to any couple’s specific situation will depend on a well-informed analysis of their current circumstances, long-term goals and any other available options. Other important factors include the current processing times, the current travel needs of the couple, work responsibilities, and costs.