Tag Archives: Form I-129F

K-3 Nonimmigrant Visa for Spouse: Pros and Cons

miss youUpon marrying a U.S. citizen, a foreign national living overseas has two visa options to enter the U.S. and become a permanent resident.

The CR-1/IR-1 immigrant visa is the primary choice for all couples. Some couples also seek the K-3 nonimmigrant visa, which has advantages and drawbacks.

The spouse may use the K-3 nonimmigrant visa to enter the U.S. while waiting for approval of the immigrant petition. After arriving in the U.S., the K-3 visa holder may file a Form I-485, application to adjust to permanent resident (green card) status. The other option is to depart the U.S. and apply for an immigrant visa at the U.S. Consulate abroad, following approval of the immigrant petition.

The K-3 visa to green card process involves pros and cons. The main ones are as follows:

PROS

1. Can help reduce the time the U.S. citizen and foreign national spouse are separated from each other

If USCIS approves the Form I-129F (K-3 visa) petition before it approves the Form I-130 immigrant petition, the foreign national spouse does not have to wait for the immigrant visa process to be completed. USCIS will forward the approved I-129F to the U. S. Consulate for processing of the K-3 visa. After arriving in the U.S. on a K-3, the foreign national may apply for a green card.

In some cases, the K-3 visa helps to shorten the time the parties are separated from each other. The K-3 visa allows the foreign national to enter the U.S. and live with the U.S. citizen spouse even before USCIS approves the immigrant petition. Some U.S. Consulates also process K-3 visas faster than immigrant visas.

2. Provides immigration benefits to foreign national spouse’s children in many cases

Unmarried children of the foreign national spouse who are under age 21 can be listed in the Form I-129F (K-3 visa) petition.  No separate I-129F petition is required. Upon approval of the petition, eligible children may receive a K-4 visa that allows them to travel to the U.S. with their parent (K-3 visa holder).

The child is not eligible for an immigrant visa if he was over age 18 on the date his foreign national parent married the  U.S. citizen step-parent. The U.S. citizen may file an I-130 immigrant petition for a stepchild only if  the marriage occurred before the child’s 18th birthday. But the child is still eligible for a K-4 visa as long as he is not yet 21 at the time of the marriage and visa issuance.

3.  Requires lower filing fees

K-3 and K-4 visa applicants must file the Form DS-160, Online Nonimmigrant Visa Application, and pay a single processing fee (currently $265). Meanwhile, immigrant visa applications based on an approved immigrant petition require a higher processing fee (currently $325), plus a fee for domestic reviews of the Form I-864, Affidavit of Support (currently $120).

There is also no filing fee for the Form I-129F petition for K-3 status based on an immigrant petition filed by the same U.S. citizen.

4. Sets a lower financial threshold

K-3 and K-4 visa applicants must provide evidence showing they will not become a public charge in the United States. This includes financial documents showing they can support themselves or the U.S. citizen can provide support.  They may opt to submit the U.S. citizen spouse’s Form I-134, Affidavit of Support, or the U.S. Consulate may instruct them to do so.

The financial threshold is lower for K-3 and K-4 visa applicants, compared to immigrant visa applicants, who must present a Form I-864, Affidavit of Support, from the U.S. citizen petitioner.

In general, minimum income requirements are set at 100% of the federal poverty guidelines in the Form I-134  for K-visa applicants, but increase to 125% of the federal poverty guidelines in the Form I-864 for immigrant visa applicants. K-3 and K-4 visa holders may live in the U.S. with the U.S. citizen petitioner  while working toward meeting the income income requirement for adjustment of status.

5.  Allows travel overseas

The K-3/K-4 visa is a multiple entry visa that is valid for two years. Unlike the K-1 fiance visa, it may be used to travel overseas and re-enter the U.S.

Foreign nationals with a valid K-3/K-4 visa do not need to travel with Advance Parole even after they file for adjustment of status.

6. Leads to employment authorization

After arriving in the U.S., K-3 and K-4 visa holders may  file a Form I-765, Application for Employment Authorization, with USCIS, and apply for a Social Security Number. The foreign national is authorized to work with a valid work card and unexpired K-3/K-4 status.

The K-3/K-4 visa holder may also apply for a work card based on a pending Form I-485, application to adjust to permanent resident status, even if their non-immigrant status expires.

CONS

1. K-3 visa petition is administratively closed if USCIS approves Form I-130 immigrant petition first (or around the same time)

The K-3 visa is a backup option in the event of long delays in the Form I-130 immigrant visa process.

If USCIS approves the I-130 before the I-129F, it will transfer that approved petition to the U.S. Consulate through the National Visa Center (NVC). In that event, it will ignore the I-129F.

If USCIS approves both the I-130 and I-129F and sends both approved petitions to the U.S. Consulate through the NVC, the I-129F will be administratively closed. In that event, the K-3 visa is no longer an option.  The foreign national spouse and eligible children must then complete the entire immigrant visa application process overseas.

USCIS does not refund the I-129F processing fee in either event.

2.  Provides immigration benefits to foreign national spouse’s children only if certain strict requirements are met

After arriving in the U.S., K-4 visa holders may apply for adjustment of status as long as they are under 21 and  the U.S. citizen petitioner filed a separate Form I-130 immigrant petition for them.

When USCIS approves the I-130 petition for the spouse and forwards it to the NVC, an immigrant visa is immediately available and the K-3/K-4 visa is no longer an option.  If there is no approved I-130 petition for the children, they cannot obtain immigrant visas to accompany the  parent. So even though I-130 petitions for the children are not required to obtain K-4 visas, the U.S. citizen petitioner still needs to file the I-130 petitions so the children can become permanent residents.

K-4 visa holders will be admitted to the U.S. for 2 years or until the day before they turn 21, whichever is earlier. The K-4 status expires when the child turns 21. Unless the I-130 was filed before the child turned 21 and the Child Status Protection Act (CSPA) applies, the K-4 visa holder may not adjust to permanent resident status upon turning 21.

Bringing children to the U.S. on a K-4 visa who were already age 18 at the time of the marriage is also very risky.  To date, only the U.S. Court of Appeals for the Seventh Circuit has ruled, in Akram v. Holder, that a K-4 visa holder might still obtain permanent residence if he was already 18 when his foreign national parent and U.S. citizen stepparent married. The court ruled that immigration laws and regulations do not require K-4s to adjust status only by way of a relationship to the U.S. citizen petitioner, but also “as a result of the marriage” of the parents.

Currently, the USCIS website states that in order for a K-4 to become a permanent resident, the marriage between the U.S. citizen stepparent and the K-3 parent must have occurred before he turned 18.  Based on this policy, USCIS could deny adjustment of status to the K-4 if the stepchild relationship to the U.S. citizen petitioner did not occur before his 18th birthday.  The Seventh Circuit’s decision is binding only in that district, which includes Illinois, Indiana and Wisconsin, and might not be persuasive in other districts.

3. Involves extra steps and additional fees

The U.S. citizen petitioner must first file a Form I-130 immigrant petition for the foreign national spouse before filing the Form I-129F (K-3 visa) petition. Although the petitioner may include his unmarried stepchildren under 21 in the I-129F petition, he must file a separate I-130 petition for the children in order for them to apply for permanent residence. The I-130 and I-129F petitions require separate filing fees (now $420 and $340, respectively).

Upon approval of the Form I-129F petition, the K-3/K-4 visa applicant then has to file a Form DS-160, Online Nonimmigrant Visa Application, which requires another processing fee (currently $265).

After arriving in the U.S., the K-3/K-4 visa holder must then file a Form I-485, application for permanent residence and pay the processing fee (currently $1,070 for applicants age 14 to 78).

Unlike immigrant visa holders who become permanent residents once they enter the U.S., K-3 and K-4 visa holders must submit a whole separate application to adjust status after they arrive in the U.S. They also need to complete an interview with USCIS before they are granted the green cards. Normally, the adjustment of status process takes at least 6 months to be completed.

K-3 and K-4 visa holders can only adjust status based on marriage to the original U.S. citizen petitioner. If the marriage fails before they become permanent residents, they will have to leave the U.S. or  overstay their authorized period, which makes them removable from the U.S. They cannot change to another nonimmigrant status and stay in the U.S.

4. Heightened financial threshold must ultimately be met 

When they apply for permanent residence, K-3 and K-4 visa holders must submit a Form I-864, Affidavit of Support, from the U.S. citizen petitioner.  If the 125% of the federal poverty guideline minimum income requirement is not met, the petitioner must normally get a joint sponsor and/or show evidence of assets that can be converted into cash in one year.

In addition, some U.S. Consulates require K-3/K-4 visa applicants to show they meet this heightened financial threshold because it must ultimately be met when they apply for their green card.

5. Visa must be valid for travel overseas

The K-3/ K-4 visa expires after two years. The visas must be valid to gain re-entry into the U.S. following travel overseas.

The K-3/K-4 nonimmigrant status may be extended by showing strong intent to eventually adjust to permanent residence. The Form I-539, application for an extension should be submitted to USCIS at least 120 days prior to the expiration of the authorized stay.

K-3/K-4 visa holders must maintain their nonimmigrant status in the U.S. to avoid accumulating unlawful presence that could bar them from re-entering the U.S. following a trip overseas. An overstay of 180 days to less than 1 year triggers a 3-year bar upon departure from the U.S. The bar is 10 years if the overstay is 1 year or more. A waiver for the unlawful presence bar is generally available, but is difficult to get.

K-3/K-4 extensions are granted in two-year intervals. If the initial visa has expired, the foreign national must obtain a new visa based on the extension to be re-admitted to the U.S., after traveling abroad.

Otherwise, the K-3/K-4 visa holder must file for adjustment of status and obtain Advance Parole to re-enter the U.S. if they depart the country. Another option is to wait abroad for the I-130 approval and then apply for an immigrant visa to re-enter the U.S.

6. Does not automatically provide employment authorization

K-3/K-4 visa holders need to file their Form I-765 and receive their Employment Authorization Document (EAD)/work card to obtain employment in the U.S. They might also need to present the EAD to obtain a Social Security Number. The Social Security Administration might not accept the K-3 or K-4 visa as proof of authorization to work.

K-3 and K-4 visa holders are not authorized to work until USCIS approves the Form I-765. Most employers will not hire them until they have the EAD as proof of authorization to work. USCIS takes approximately 90 days to process the EAD.

Furthermore, the EAD expires when the K-3/K-4 status expires. The adjustment of status applications must be pending for the foreign national spouse and child to qualify for a new EAD.

Conclusion

The K-3 to green card process has pros and cons. Although it provides many benefits — such as allowing the foreign national to enter the U.S. and live with the U.S. citizen spouse before the immigrant visa process is completed — it carries risks.

Consult  an experienced immigration attorney to help you determine whether the advantages outweigh the drawbacks in your specific case.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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