Introduction - K-1/K-2 Status
The K-1 Fiancé (e) Visa allows foreign nationals, potential spouses of United States Citizens to enter the United States for the sole purpose of marriage.
The marriage between the foreign national and United States citizen must take place within ninety (90) days of entry into the United States. It should be noted that the actual visa expiration is insignificant as long as a foreign national has complied with the terms of the visa.
In order to be eligible for K-1 status, a foreign national must provide proof that:
o There is a bonafide (“good faith”) intention to marry;
o There is an appropriate legal capacity to marry (i.e., proper age, former marriages dissolved by annulment or divorce);
o They are actually willing to enter into a valid marriage within ninety (90) days after entry into the U.S.;
o Prospective husband and wife have previously met in person within the two (2) years prior to filing a petition to receive K-1 visa status.
The K-1 visa also makes provision for the U.S. Citizen to have his/her fiancé (e)’s child(ren) enter as a non-immigrant. K-2 dependent status is available to minor children, under the age of 21, and can be applied for in the same petition as the primary visa holder.
Termination of K-1/K-2 Status
o If the marriage does not take place within 90 days, or your fiancé (e) marries someone other than you (the petitioner), your fiancé (e) and any accompanying dependents will be required to leave the United States.
o The K-1 petition is automatically terminated when the petitioner dies or voluntarily withdraws the petition.
o And, since K-2 status is dependent upon the primary visa holder, any dependents’ status is subject to cancellation or revocation upon expiration of the primary visa holder’s status.
Duration of Stay
The K-1 Visa is typically valid for a period of four (4) months. Those admitted on a K-visa will not be eligible to adjust their status to any other nonimmigrant classification or apply for an extension of their temporary period of stay in the US.
Eligibility to Work
After arriving in the United States, your fiancé (e) will be eligible to apply for an Employment Authorization Document (EAD), which can be valid for a maximum of two (2) years. This can be obtained by submitting a completed Form I-765 and proper filing fee to USCIS. Please note that USCIS might not be able to process the Employment Authorization Document within the 90-day time limit for your marriage to take place. Therefore, it is preferred by some to apply for their EAD along with their application for Adjustment of Status (AOS).
Prior Approval by USCIS:
o The petitioner (US Citizen) must file a petition with the USCIS on Form I-129F, and not with a U.S. Consulate.
o The I-129F petition must be filed with: USCIS, Attention: I-129F, 2501 South State Highway 121 Business, Suite 400, Lewisville, TX 75067.
o Once the petition is approved, the petitioner will be notified by UCSIS on Form I-797C.
o USCIS informs National Visa Center of the approval, who then informs the US Consulate that has jurisdiction over the beneficiary’s place of residence in the foreign country, who contacts the beneficiary with instructions to schedule an interview for visa stamping.
Waiver Requirement for Certain Prior Petitioners
A petitioner who has filed two or more K-1 visa petitions at any time in the past or previously had a K-1 visa petition approved within two years prior to the filing if this petition must apply for a waiver. To request a waiver, you must submit a written request with this petition accompanied by documentation of your claim to the waiver. If you have committed a violent offense against a person or persons, USCIS may not grant such a waiver unless you can demonstrate that extraordinary circumstances exist.
“Entry” Approval by Consulate:
Although USCIS may have approved a Fiancé (e) Visa Petition, this is not the end of the inquiry.
The U.S. Consulate must independently determine that the foreign national will be eligible to receive an immigrant visa before final approval can be made on any K-1 visa. This means that a U.S. Consular Official will review the grounds for admissibility to the United States to determine whether or not there are any reasons for denial of the visa.
Once the Beneficiary has entered the United States and into a valid marriage with the Petitioner, they are eligible to apply for adjustment of status to Conditional Permanent Residence on Form I-485. K-2 dependents that accompanied the primary visa holder will be required to file separate I-485 petitions for adjustment of status. Please note: A K-1 visa holder may not adjust status on any grounds other than marriage.
Becoming a Lawful Permanent Resident:
Once the I-485 application(s) has been approved, USCIS will grant the Beneficiary, and any dependents, Conditional Permanent Resident status and issue a Permanent Resident Card valid for two (2) years.
In order to finalize the process of becoming a Lawful Permanent Resident, a Joint Petition (Form I-751) to Remove the Conditional Basis of an Alien’s Permanent Resident Status must be filed during the 90-day period immediately before the second anniversary of the date your alien spouse was granted their AOS to Conditional Permanent Resident. A copy of the Permanent Residence Card issued to the Beneficiary will need to be submitted with the Joint Petition to USCIS. Any dependents that were admitted along with your spouse may also be included in the joint petition to remove conditions. Please note: Failure to file Form I-751, Joint Petition to Remove the Conditional Basis of Alien’s Permanent Resident Status, will result in termination of permanent residence status and initiation of removal or deportation proceedings.
Upon approval of the I-751 Joint Petition to Remove the Conditional Basis, USCIS will grant Lawful Permanent Resident status and issue a new Permanent Resident Card to the beneficiary and any dependents.
Intoduction- The K-3/K-4 Classification
The K-3/4 Visas have been instituted to allow foreign spouses and children of U.S. Citizens to enter the United States as nonimmigrants, in order to be reunited with their family while applying for immigrant status in the U.S.
In order to be eligible for K-3 status, the following requirements must be met:
o The beneficiary must be the spouse of a US citizen;
o Form I-130 (Petition for Alien Relative) filed on his/her behalf by his/her U.S. citizen spouse, must be pending with USCIS;
o An I-129F petition for the Alien Spouse must be completed and submitted on his/her behalf by his/her citizen’s spouse to the USCIS.
K-4 status is dependent on the status of the primary K-3 visa holder, and the minor children of the foreign spouse must be under the age of 21 and unmarried in order to qualify. Therefore, the K-4 status is subject to cancellation or revocation upon expiration of the primary visa holder’s status.
To be eligible for a K-4 nonimmigrant visa, an applicant does not need a separate Form I-129F petition filed on his/her behalf. Moreover, an I-130 petition need not be pending on behalf of the K-4 dependent although, as a practical matter, the U.S. citizen would normally file a separate I-130 petition for a stepchild to assure their immigration with the principal K-3 applicant. Please note: the K-4 dependent will not be able to adjust status to Permanent Residence or to file an application for adjustment until the I-130 is filed by the U.S. citizen parent/stepparent. The I-130 filing on behalf of the K-4 dependent, on the other hand, may take place while the child is in the United States in K-4 status.
Duration of Stay
K-3 nonimmigrants will be admitted to stay in the US for a period of 2 years. K-4 nonimmigrants will be admitted for 2 years or until their 21st birthday, whichever comes first.
Extension of Stay
K-3/K-4 nonimmigrants may file for an extension of stay following the two-year admission period. These extension requests are filed on Form I-539 and are normally granted in increment of two years at a time. Such applicants are required to have already filed an I-485 Adjustment of Status (AOS) or the alien is still awaiting approval of the pending I-130 or has “good cause.” A showing of “good cause” may include an illness, a job loss, or some other catastrophic event that has prevented the filing of an AOS application.
K-3/4 nonimmigrants may file for an extension of stay up to 120 days prior to the expiration of their authorized stay. Extensions for K-4 dependents must be filed concurrent with the application for extension of the primary visa holder.
Eligibility to Work
K-3/4 nonimmigrants may also apply for authorization to work in the United States while they wait for their immigrant status. To do so they must submit a Form I-765, Application for Employment Authorization (EAD), and proper filing fee to USCIS.
K-3/4 aliens seeking to renew their Employment Authorization will be required to show that they are pursuing the immigration process and still meet the requirements of the classification by virtue of having an application or petition awaiting approval. To renew work authorization, the applicant(s) must show that the I-130 has been filed with USCIS in order to receive a second EAD. Renewals may be requested concurrently with an application for extension of stay.
Termination of K-3/K-4 Status
The status of a K-3/4 nonimmigrant, will be automatically terminated 30 days following the occurrence of any of the following:
o The denial or revocation of Form I-130 filed on behalf of the K-3/4 nonimmigrant;
o The denial or revocation of the immigrant visa application filed by that alien;
o The denial or revocation of the alien’s application for adjustment of status to that of lawful permanent residence;
o The K-3 spouse’s divorce from the US citizen becomes final;
o The marriage of a nonimmigrant in K-4 status;
o The denial of any of these petitions or applications to a K-3 nonimmigrant also results in termination of a dependent K-4 nonimmigrant’s status.
Applying for Immigrant Status
The K-3/4 nonimmigrant classification does not provide immigrant status.
o Once in the U.S., the K-3 nonimmigrant must file for AOS to Permanent Residence using Form I-485.
o Form I-130 must be filed on behalf of the K-4 nonimmigrant, as well as an application for AOS to Permanent Residence, by the U.S. citizen parent/stepparent, with: USCIS, 2501 South State Highway 121 Business, Suite 400, Lewisville, TX 75067.
o K-3/4 non-immigrants will become lawful permanent residents, and receive their Green Cards, when both the I-130 application and petition for AOS to Permanent Residence have been approved.
o K-3/4 nonimmigrants have the option to apply for an immigrant visa instead of AOS, and may await approval in the U.S. until they have to appear at the consulate for the visa interview.