The K-3 visa allows U.S. citizen’s foreign-born spouse (or child of a foreign spouse under a K-4 visa) to travel to the United States and reside there while they wait for their underlying immigrant visa petition to be approved.
On paper, the K-3 visa seems like an ideal immigration option for U.S. citizens with foreign-born spouses. It serves to reduce the physical separation between spouses and promotes family unity – noble causes indeed.
However, the lofty goals the K-3 aims to achieve fall woefully short in practice, and it is rarely the ideal immigration option to pursue when compared to alternative methods of petitioning for a spouse.
Eligibility
To be eligible for a K-3/K-4 visa, the following general requirements must be met:
If you are a U.S. citizen, your foreign spouse may be eligible for a K-3 visa if he or she:
Is married to you;
Is the beneficiary of a Form I-130, Petition for Alien Relative, that you filed for him or her; and
Seeks to enter the United States to await USCIS’ decision on the Form I-130.
A child of your foreign spouse may be eligible for a K-4 visa if he or she is:
Under 21 years of age;
Unmarried; and
The child of the K-3 visa applicant you filed for.
Validity
K-3 and K-4 visas are valid for a two-year period. They can be extended using Form I-539, but the Applicant must show that they have a pending I-130, I-485, or other pending immigrant visa application. Extensions are granted in two-year increments.
General Process
The K-3/K-4 Visa Process can generally be broken down into five separate steps:
Prior to beginning the K-3/K-4 process, the U.S. citizen spouse must file Form I-130, Petition for Alien Relative, with USCIS. The purpose of this form is to establish that a bona fide marriage exists between the U.S. Citizen petitioner and the foreign spouse.
Like the K-1 Visa, Form I-129F is filed with USCIS, petitioning for the foreign spouse. However, unlike the K-1 visa, there is no filing fee due to USCIS for K-3/K-4 applicants.
Once the I-129F is approved, the U.S. Embassy or consulate where the non-citizen spouse lives will notify the non-citizen spouse of their scheduled interview date. Form DS-160 must be properly prepared and submitted prior to the scheduled interview date.
Upon receiving the K-3 visa from the consulate or embassy, the non-citizen spouse must enter the U.S. at a lawful port of entry while the K-3 visa is valid.
Once in the United States, the U.S. citizen spouse and foreign spouse can complete the process by filing Form I-485, Application to Register Permanent Residence or Adjust Status, to finalize the green card process from within the United States.
So What’s the catch?
The problem with K-3 visas all boils down to the processing time of the I-130.
If the I-129F is approved prior to the I-130 then, as noted above, the applicant can proceed to obtain their K-3 visa and enter the United States to await the approval of their immigrant visa petition.
However, when the I-130 is approved prior to the I-129F, or, alternatively, where both the I-130 and the I-129 petitions are approved by USCIS at the same time, the need for a K-3 visa is effectively eliminated as the entire point of a K-3 is to reunite the couple while the I-130 is pending. Per USCIS, “this occurs in the vast majority of cases.” In a case where the I-130 is approved prior to or concurrently with an I-129F, USCIS will convert the case to a CR-1/IR-1 case and the U.S. citizen spouse and foreign-born spouse will have to proceed with consular processing.
Given the high probability that USCIS will approve the I-130 prior to the I-129F, the K-3 visa, as it stands, is effectively useless. In most cases, it operates the same as consular processing, with an extra step and at extra cost all for the slim possibility of a foreign-born spouse being allowed to legally enter the United States while they await the approval of their immigrant visa petition.
Because of this reality, a much more pragmatic approach would be to directly pursue consular processing following the approval of the underlying I-130. Under this approach, there is no uncertainty as to whether it will be approved in time as there is with the K-3. And unlike the K-3, consular processing will provide the foreign spouse with a CR-1 or IR-1 immigrant visa as opposed to the K-3 non-immigrant visa.
Hire an Experienced Immigration Attorney to Handle your Immigration Case.
As you can see, while a K-3 visa looks to be an ideal option on paper, its practical application renders it relatively useless.
You need a qualified Immigration Attorney at your side to help you through your immigration case. The process of sponsoring a non-citizen spouse can be taxing and can be fraught with complications. An experienced Immigration attorney can guide you through the system, customizing a plan of action to suit your specific needs and achieve your unique immigration goals.
Call Us Today at (305) 539-0991 for a Free, no obligation, consultation to learn more about how we can help you.
We offer immigration attorney services for our clients all over South Florida!
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