Kirberger PC: a boutique law firm providing US visa and immigration services since 1998.



K Visa: US Citizen Spouses and Fiance(e)s

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seaside wedding reception 133454954 K Visa: US Citizen Spouses and Fiance(e)sThe K Visa is a temporary US visa option for a fiancé(e) or spouse of a US citizen. Once issued, the K Visa allows entry into the US to enable families to remain together while they continue the Green Card process. Same-sex couples are now eligible for the K visa.

An unmarried child of a US citizen’s fiancé(e) or spouse may receive a derivative K-2 or K-4 visa based on his or her parent’s petition. However, the child must have been included in the USCIS petition on behalf of the US citizen’s fiancé(e) or spouse, and the stepparent-stepchild relationship must have been created before the child reaches the age of 18.

Also, certain conditions and activities may make an applicant ineligible for a US visa. Ineligibility is an extremely complicated issue requiring a case-by-case examination. Examples include: criminal convictions; drug trafficking; health conditions including drug or alcohol addiction; previous visa overstays; practicing polygamy; advocating the overthrow of the government; submission of fraudulent documents; and others.

K-1 Visa: Fiancé(e)

A fiancé(e) is an individual who is engaged or contracted to be married. In general, the two engaged individuals must have met in person within the past two years. However, USCIS grants some exceptions to this requirement. For example, it may be contrary in some traditions for a man and woman to meet before marriage.

If a US citizen wants to marry a foreign fiancé(e), and wants that fiancé(e) to travel to the US to marry and live in the US, s/he must file a K-1 visa petition in the US, and the foreign fiance(e) must file a K-1 visa petition at a US post.

Step 1: Filing the K-1 Visa Application

US citizen spouses must first file the K-1 Visa application and support documents with the USCIS office serving their jurisdiction. If USCIS approves the petition, they will forward it to the National Visa Center (NVC) for continued processing. NVC will then forward it to the US embassy or consulate where the US citizen’s fiancé(e) will apply for a K-1 Visa.

The fiancé(e) petition is valid for four months from the date of approval. Consular officers can extend the petition validity if it expires before they complete K-1 visa processing.

Step 2: Applying for the K-1 Visa

K-1 visa applicants must present certain forms, documentation and information at the US consulate. They will be fingerprinted and interviewed. While visa issuance normally follows within a few days, some applications require further administrative processing. This may take additional time after the interview. Of course, a consular officer may request additional information according to the circumstances of a particular case.

After the K-1 Visa: Next Steps

A K-1 Visa holder must enter the US before the K-1 Visa expires. In some instances, the expiration date may be extended by a consular officer. Once admitted to the US, the K-1 Visa holder has 90 days to marry the US citizen petitioner. After marriage, the couple must then submit all forms and documents associated with the adjustment of status (green card application).

The K-1 Visa allows a fiancé(e) to enter the US only once, though emergency travel is possible if necessary. Working on the K-1 Visa may also be possible, but this depends on factors present in a particular case.

K-3 Visa: US Citizen Spouse

Spouses of US citizens and their children may enter the US on nonimmigrant K Visas (K-3 and K-4) to complete the US immigration process. Before the consulate may issue a K-4 Visa to a child, her parent must have a K-3 Visa or be in K-3 status.

Same-sex spouses now qualify for the K-3 visa. However, cohabiting partners who are not legally married do not at this time qualify as spouses for US immigration purposes. Common law spouses may qualify for immigration purposes depending on the laws of the country where the common-law marriage occurred.

Spouses married previously must show termination of all previous marriages prior to the current marriage. Death and divorce documents showing termination of marriages must be legal and verifiable in the country of issuance, and divorces must be final.

Step 1: K-3 Visa Requires Two Petitions

US citizen spouses must first file a Petition on behalf of the non-US spouse with the USCIS Office that serves the area where they lives. USCIS will send a Notice of Action (Form I-797) confirming that receipt of the petition.

The US citizen spouse must then file another petition with USCIS office on behalf of the K-3 applicant spouse and any children along with supporting documents. They must also file a copy of the Form I-797 receipt notice from Step 1 of the K-3 process to the appropriate USCIS office.

National Visa Center (NVC)

Upon approval of a K-3 Spouse petition, USCIS sends it to the National Visa Center (NVC). NVC then sends it to the US Embassy or Consulate in the country where the marriage occurred. If your marriage occurred in the US, NVC sends the petition to the appropriate US Embassy or consulate in the country of the prospective K-3’s nationality.

If your marriage occurred in a country without a US Embassy, or that US Embassy does not issue visas, NVC sends the petition to the US Embassy or US consulate that normally processes US visas for citizens of that country. For example, if a marriage took place in Iran, NVC would send the petition to Turkey or another designated US consulate.

Step 2: Applying for a K-3 Visa

The US citizen’s spouse must apply for a K-3 visa in the country of marriage. The spouse must then present additional forms, documentation and information relating to eligibility. US officials will then fingerprint and interview the applicant. Visa issuance normally follows within a few days. However, some visa applications require further administrative processing. This takes additional time after the interview. Of course, a consular officer may request additional information according to the circumstances of the case.

For same-sex couples, the K-3 visa process is still somewhat unclear. For example, the couple may have married in a country other than that where the non-US spouse lives, since not all countries recognize same-sex marriage. We expect the Department of State to provide further guidance on this issue in the near future.

Children of K-1 Visa and K-3 Visa Holders Have Derivative Status

Children do not need separate alien relative petitions. But a K-1 visa or K-3 application must include them. If you do not name the children on the application, they may find it difficult to prove their identity as the K visa applicant’s children during the K-2 Visa or K-4 Visa application process.

How do I qualify as a child of a K-1 Visa or K-3 visa holder?

Applicants for the K visa must be the minor, unmarried child under 21, of a qualified K Visa applicant. US citizens filing a K visa application do not have to file separate petitions for children of a fiancé(e) or spouse. But they must list children on the petition. While US citizens must also file alien relative petitions for non-US spouses, they are not required to file those forms for their spouse’s child(ren).

After K Visa Issuance

The K visa holder and any children, if applicable, arrive in the US and continue Green Card applications (Lawful Permanent Residence). The non-US spouse and each child must then submit an adjustment of status application for permanent residence. In addition, the US citizen spouse must submit an alien relative petition for each child along with the adjustment application. Only unmarried children under 21 qualify as immediate relatives under US immigration law.

Can K visa holders change to another temporary visa category in the US?

No. K visa holders cannot change status in the US to another nonimmigrant visa category.

Can I travel and re-enter the US on my K visa?

An individual in the US in K visa status can travel outside of the US and return using the K visa as long as it is valid for return. If the K visa holder has filed for adjustment of status in the US prior to departure from the US, USCIS will not presume that the departure constitutes abandonment of an adjustment application.

Can a K Visa Holder Work in the United States?

Yes, but K visa holders must apply for employment authorization with the USCIS that serves the area where you live.