What You Need to Know about K-3 Visas for a Noncitizen Spouse

A K-3 visa is a nonimmigrant visa that allows a legally-wedded, foreign-national spouse of U.S. citizen to enter the United States while awaiting determination of eligibility for permanent residence.  In other words, it is a technique that often, but not always, can get your spouse to the U.S. a bit quicker. (Children of the noncitizen spouse may also be eligible to enter on a K-4 visa.) The process begins when the U.S. citizen files two petitions on behalf of the noncitizen spouse:

• Form I-130 Petition for Alien Relative — This form permits a citizen or LPR to establish the relationship to the spouse who wishes to immigrate. There is a $420 filing fee. When filing for a spouse, this petition must include a Biographical Form G-325A for you and your spouse. This form goes to the U.S. Citizenship and Immigration Services’ Chicago Lockbox.
• Form I-129F, Petition for Alien Fiancé(e) — Don’t let the title fool you; this is the same form to use if you are already married and either have an I-130 pending or have entered the US as a Finance(e) and now want to adjust status.  This already approved petition can be substituted for the I-130 in such circumstances. There is no filing fee in the case of a K-3 applicant (trying to get to the U.S. before the I-130 is approved). U.S. citizens filing this form for a spouse must include a Form I-797-C, Notice of Action, indicating that they have filed Form I-130. This form and attachments go to the USCIS Dallas Lockbox.  However, if filing this form to petition for  a Fiance(e), there is, of course, a filing fee.

Once the noncitizen spouse gains admission to the U.S., he or she may apply to adjust status to legal permanent resident (LPR) or obtain employment authorization by filing Forms I-485, Application to Register Permanent Residence or Adjust Statusand I-765, Application for Employment Authorization.

K-3 visas have important limitations to keep in mind

The Department of Homeland Security (which oversees USCIS) only admits K-3 nonimmigrant visa holders for two years.  However, a K-3 visa holder may apply for an extension during any adjudication about the marriage. Once the Form I-130 reaches the U.S. Department of State, the noncitizen spouse is issued an immigrant visa and must immigrate on the I-130, unless s/he is already in the U.S., in which case they may file to adjust their status.

Although there are certain exceptions, it’s important to remember that a K-3 visa holder only has temporary authorization to remain in the U.S. Permission to stay in the country terminates 30 days after any of these actions:

• USCIS denies or revokes the Form I-130 petition.
• USCIS denies an immigration petition filed by the K-3 visa holder.
• The marriage is dissolved through divorce or annulment.

When a K-3 visa holder is denied permission to stay, that denial extends to any children who have entered on K-4 visas. K-3 applicants and their sponsors should understand how complex the process is, and how easily a mistake can cause delay, additional expense and denial. That’s why it’s important to consult an experienced and successful immigration attorney.

Bretz & Coven, LLP is ready to answer your questions and guide you through the process so you can be united with your loved one. Call us at 212-267-2555 or contact us online to schedule an appointment.