K-3/K-4 Nonimmigrant Visa

The K-3 nonimmigrant visa classification applies to alien spouses of U.S. Citizens residing outside of the United States. Unlike the K-1 visa, the K-3 visa is a multi-entry visa with a two-year validity period that allows a foreign spouse and his or her minor children to enter the United States as a nonimmigrant while their I-130 Petitions for Alien Relative are pending adjudication.

Common-law spouses may be considered spouses for immigration purposes depending on the laws of the country where the common-law marriage occurred. For immigration purposes a marriage overseas is considered valid in the United States if the couple abided by the required marital laws of the foreign country.

What does multi-entry mean? Multi-entry means that the K-3 or K-4 visa holder can travel freely outside of the United States and re-enter for as long as the K-3/K-4 visa is valid. A K-3/K-4 visa holder does not need to apply for advance parole to travel internationally while their application is pending with CIS unless the K-3/K-4 visa has expired and the visa holders are the beneficiaries of a pending I-485 application.

Conditions for Expiration of a K-3 Visa

If USCIS denies or revokes the I-130 petition, or I-485 petition, or the marriage between the alien spouse and US Citizen terminates through divorce or annulment, the K-3 visa holder’s stay will automatically expire within 30 days of the event. The K-4 visa holder’s stay will also expire whenever the K-3 visa holder’s stay expires.

K-4 Visa

The K visa classification extends to minor children of an alien spouse married to a U.S. Citizen. These minor children receive the K-4 visa classification valid for a two-year period or the day before their 21st birthday whichever is shorter. In order to qualify, the minor must be unmarried and under the age of 21. Minor children of the foreign spouse may be admitted to the United States under the K-4 nonimmigrant visa classification if the marriage between the biological parent and step-parent occurred before the minor reached their 18th birthday. The K-4 visa classification expires once the visa holder turns 21 years of age. If the K-4 visa holder turns 21 years of age, they may continue to be eligible for adjustment of status under the Child Status Protection Act only if the US Citizen petitioner filed an I-130 petition on their behalf before turning 21 years of age. If the child marries, the K-4 visa classification automatically expires 30 days after the marriage.

Extensions

K-3/K-4 visa holders may request an extension of stay in 2 year intervals. Extensions should be filed at least 120 days prior to the expiration of the K-3/K-4 visa. K-3/K-4 visa holders are prohibited from changing their status to another nonimmigrant visa category.

Ineligible Applicants

Legal permanent resident’s (LPRs) may not file a K-3/K-4 visa for their alien spouse and minor children. Only a United States citizen has this privilege. Foreign nationals who have been temporarily barred from the United States for immigration violations (fraud, willful misrepresentation, unlawful presence, illegal re-entry, etc.) or due to criminal convictions cannot seek admission to the United States on a K-3 visa. Such individuals will need to file a waiver with the appropriate agency before seeking admission to the United States.

What is the purpose of the K-3/K-4 Nonimmigrant Visa?

The K-3/K-4 nonimmigrant visa classification is an alternative to consular processing. Unlike the K-3 visa, consular processing does not allow the US Citizen and alien spouse to live together in the United States throughout the immigration process. One of the biggest drawbacks to consular processing is that it takes a substantial amount of time to obtain an immigrant visa due to the National Visa Center (NVC) stage of the application process delaying the immigration process significantly, due to the large number of applications that go through pre-processing at the NVC.

The K-3 visa process was an initiative designed to expedite the immigration process by granting a foreign spouse and his or her minor children lawful entry to the United States. It was also enacted to shorten the time of physical separation between the alien spouse and U.S. Citizen. Through consular processing, an alien spouse may encounter a processing time of anywhere from 8-12 months to receive their immigrant visa. Consular processing times largely depend on the volume of applications received by the National Visa Center and the number of applications in line for a consular interview abroad. As opposed to the K-3 visa, consular processing does not allow an alien spouse to seek employment or remain in the United States during the immigration process. Alien spouses may travel to the United States only if they possess a valid nonimmigrant visa and they must not overstay the duration of stay for the visit. Although it is true that the K-3 visa also has plenty of drawbacks, you may find that this visa is right for you if you would like to overcome physical separation from your alien spouse.

There are 3 ways to immigrate a foreign spouse to the USA 1) adjustment of status from within the United States 2) consular processing through the NVC and a consular office overseas and 3) the K-3 visa process. Additionally, a US Citizen may petition for their bride to be by filing the K-1 visa.

The K-3 is the least popular visa when it comes to immigrating a foreign spouse. Clients typically opt for consular processing or the K-1 visa if the couple have not yet entered marriage. One of the biggest drawbacks of the K-3 visa is that while attempting to expedite the immigrant process, the K-3 visa creates triple the paperwork since the applicant will need to complete three different applications (I-130, I-129F, I-485) to eventually receive their green card which requires much of the same supporting documentation to be submitted. The K-3 visa process can also take about the same time as the K-1 visa process and the end result is not a green card, but instead a two-year renewable work, study, and travel permission to enter the USA and continue the immigration process inside the United States. Even once the K-3/K-4 visa holder is admitted to the United States it will take an additional 4-5 months for the I-485 application to be adjudicated which culminates in the actual green card benefit. You may consider the K-3 visa if the time associated with the immigration process is an important factor in your relationship.

Differences between AOS within the USA, Consular Processing, and K-3 visa

Adjustment of Status within the United States

Typically, when a foreign spouse and USC spouse are living together in the United States the alien spouse may adjust status by filing the I-130 petition and I-485 green card application concurrently if the alien spouse entered the U.S. in lawful status. This process allows the alien spouse and his or her children to immigrate to the United States within approximately 4-6 months.

Consular Processing

The K-3 visa serves as a more expedient alternative to consular processing which consists of filing the I-130 petition, mailing of biographical, financial, and criminal clearance documents to the National Visa Center, and waiting to receive an interview at a consulate overseas to receive an immigrant visa to travel to the United States. This process allows the alien spouse and his or her minor children to immigrate to the United States within approximately 8-12 months.

K-3 Visa

The K-3 visa is the middle ground between adjustment of status within the USA and Consular Processing. Instead of filing the I-130/I-485 applications concurrently, the K-3 visa allows the I-130/I-129F petitions to be filed concurrently with an early travel permission for the alien spouse and his or her minor children which comes in the form of the K-3/K-4 visa. Once admitted in K-3/K-4 nonimmigrant status the alien spouse and his or her minor children may file the I-485/I-765 petitions concurrently which is the green card application and application for employment authorization. The K-3 visa allows the alien spouse and his or her children to enter the United States in K-3/K-4 status within approximately 5-7 months. It will take an additional 4-5 months for the I-485 green card application to be adjudicated from the date of filing.

Benefits of the K-3 visa

Recipients of the K-3 and K-4 visa may study, travel freely outside of the United States and re-enter, apply for employment authorization, apply for permanent residence, and remain in the United States throughout their immigration process. K-3 spouses and their minor children may apply for employment authorization while in the United States by filing USCIS Form I-765 Application for Employment Authorization. Employment authorization confers many benefits to foreign nationals including attainment of a social security number, driver’s license, access to insurances, and more. K-3 and K-4 applicants may not apply for any of these benefits until they have received their employment authorization card (EAD) approximately 90 days from the date USCIS receives the I-765 application.

Application Process

The K-3 visa is a two-step process which includes 1) filing a separate I-130 petition with USCIS for each person immigrating to the United States and 2) filing of the I-129F petition for alien fiancé for the alien spouse and his or her minor children planning to adjust status to permanent resident. The petitioner does not need to wait for the approval of the I-130 petition(s) in order to file the I-129F petition. The petitioner must only include a copy of the I-797 Notice of Action for each I-130 petition filed in order to prove that the application(s) are pending adjudication with USCIS when filing the I-129F petition for the alien spouse and his or her minor children.

Once the K-3/K-4 nonimmigrant has been admitted to the United States they may file Form I-485 Application to Register Permanent Residence or Adjust Status and Form I-765 Application for Employment Authorization concurrently.

The I-130 petition enables the alien spouse and his or her minor children to seek permanent resident status once they are admitted to the United States on a K-3/K-4 visa. The I-129F petition for alien fiancé(e) allows the alien spouse and his or her minor children to obtain a K-3 visa at a consulate overseas. The I-130 petition is adjudicated by USCIS, while the I-129F petition receives final adjudication by a U.S. Consular official at the designated U.S. embassy or consulate overseas where the K-3 spouse was married or resides. There is no filing fee for the I-129F petition for classification of an alien who is the spouse of a United States citizen.

The Legal Immigration Family Equity (LIFE) Act requires the alien spouse to apply for the K-3 visa in the country where the marriage took place. If the marriage took place in the United States, the alien spouse must apply for the K-3 visa in their country of residence. Additionally, the petitioner must state the city and country where the alien spouse and his or her children will apply for the K-3/K-4 visa on Form I-129F. Any minor children of the alien spouse must be included in the I-129F petition. The petitioner does not need to file a separate I-129F for the minor children of the alien spouse.

Note: Once USCIS receives the I-130 and I-129F petitions USCIS will forward the approved petitions to the National Visa Center (NVC). If the NVC receives the approved I-129F petition first, it will process the I-129F petition. If the opposite occurs, and the NVC receives the approved I-130 first, the need for the K-3 nonimmigrant visa will be terminated. If the NVC receives both the I-130 and I-129F approved petitions at the same time, the K-3 visa application will be administratively closed and the K-3 application process will no longer be available proceeding as consular processing.

Step One:

  1. File Form I-130 along with supporting documentation for your alien spouse and a separate I-130 petition for any unmarried minor children who will be immigrating to the United States with your alien spouse along with supporting documentation. The I-130 petition for the alien spouse and his or her minor children must be filed concurrently with USCIS so that the applicants may immigrate to the United States together, otherwise you may run into complications;
  2. Wait for a I-797 Notice of Action or ‘receipt notice’ to arrive in the mail, within approximately 2-3 weeks of filing, for each I-130 petition you have filed. You will need to provide a copy of this receipt notice once you file the I-129F petition for your alien spouse and his or her minor children as proof that you have begun the process for the K-3/K-4 visa;

I-130 Supporting Documents

  • Signed and completed G-325A for alien and petitioner;
  • Copy of the alien spouse/petitioner’s marriage license;
  • Copy(ies) of all previous divorce judgments (if any of the parties were married previously);
  • Copy of birth certificates for both the beneficiary and the petitioner (the U.S. citizen can provide a copy of his/her passport in lieu of birth certificate);
  • Copy of the beneficiary’s passport ID page, Visa, and I-94 (if applicable);
  • Copy of the petitioner’s passport or Naturalization Certificate;
  • Passport pictures (2 for Beneficiary; 2 for Petitioner);
  • USCIS Filing Fee: Check, Cashier’s Check or Money Order for $420.00 made payable to “U.S. Department of Homeland Security”.

Why do I need to file the I-130 Petition for Alien Relative?

Filing of the I-130 petition is necessary in order to establish the family relationship between the alien and US Citizen and is a necessary component of the immigration process to adjust status to lawful permanent residence based on a family sponsored petition. You cannot include your alien spouse’s minor children on the same I-130 petition for the alien spouse. Instead you must file a separate petition for each minor child. It is not required for you to wait for an I-130 approval for the purposes of filing the I-129F petition for your alien spouse and his or her minor children. Similarly, the alien spouse and his or her minor children may file the I-485 application register permanent residence or adjust status (aka green card application) once they have been admitted to the United States in K-3/K-4 status without having to wait for an I-130 approval.

Step Two:

  1. File the I-129F petition on behalf of your alien spouse and his or her minor children immediately after you have received the receipt notice for the I-130 petitions.

Supporting Documents for I-129F Petition

  • Passport pictures – 2 for Beneficiary & 2 for Petitioner (the pictures must be cropped 2” by 2”);
  • Copy of birth certificates for both parties (with certified English translation);
  • Copy of the beneficiary’s passport ID page and all previously issued U.S. visas;
  • Copy of the petitioner’s US passport/Naturalization certificate;
  • Copy of your Marriage Certificate (with certified English translation if applicable)
  • Copy of all divorce judgments (or certificate of death if previous spouse has passed away) from both Beneficiary and Petitioner (if applicable);
  • Proof of Relationship (Examples are listed below – the more evidence; the better for your case)
  • Evidence of flight tickets showing proof of visit/s with your alien fiancé;
  • Proof of money transfers between both parties;
  • Phone bills showing that both parties speak on a regular basis;
  • Copies of e-mails sent between both parties;
  • Any evidence of wedding plans (e.g. Receipt for a wedding dress, flowers for the ceremony, or contract with the future wedding venue);
  • Evidence of joint property/ownership (e.g. Bank Statements, Personal property receipts, Auto pink slips or auto payments, Lease or deed to home, Stocks, bonds, mutual funds);
  • Personal Relationship Statement (see example) Both parties must write a statement
  • Notarized affidavits from relatives declaring that the relationship is a true and loving (must be typed, signed and dated – Please also include a copy of relative’s government issued I.D.);
  • Photographs of both Beneficiary and Petitioner together & with each other’s family (*on backside of each photo please provide: date the picture was taken, location, and who is in the picture);
  • There is no filing fee for the I-129F for an alien who is the spouse of a United States citizen;

Once USCIS has approved the I-129F the application will be transferred to the NVC for pre-processing. Once NVC confirms receipt of the application, the petitioner will need to sign and complete form I-134 Affidavit of Support and include the following supporting documents to demonstrate that the petitioner meets the income requirements to sponsor the intending immigrant(s). For more information on the affidavit of support and poverty guidelines please click here:

Supporting Documents for Affidavit of Support

  • Copy of the petitioner’s most recent federal tax return. If he/she did not file taxes in the most recent tax year, he/she should provide a signed affidavit (we will draft this);
  • Copy of the petitioner’s most recent wage statements (w-2 and/or 1099’s);
  • Copy of the petitioner’s 2 to 3 most recent pay stubs or last 6 months of bank statements if self-employed or retired;
  • Letter of employment from Petitioner’s employer – letter must include annual salary and dates of employment (on company letterhead, signed & dated);
  • Proof of assets (if supplementing income with assets) such as deed of property ownership, home appraisement report, deed of vehicle ownership, proof of 401K, IRA, mutual investment funds etc.

For a list of required documents that must be mailed to the National Visa Center along with the DS-160 Application for Nonimmigrant Visa Application for each intending nonimmigrant. please click here. These documents must be mailed to the national visa center once the NVC confirms receipt of the I-129F petition. For more information about the necessary documents please click here.

Please contact us to discuss your individual immigration case and determine which visa type is right for you.

Immigration Lawyer Blog - Non immigrant Visas