New K Regulations for Spouses of US Citizens and their Children
The INS published regulations on August 14, 2001 to implement Section 1103 of the Legal Immigration Family Equity (LIFE) Act, which creates a new nonimmigrant classification for spouses of U.S. citizens and their children. This visa, known as the K-3 visa, would allow the spouse of a U.S. citizen to enter the United States while awaiting the approval of the immigrant visa petition. A corresponding K-4 visa is available to minor children of such spouses.
Prior to the passage of the LIFE Act, the K nonimmigrant classification was limited to a fiancé or fiancée of a U.S. citizen seeking to enter the United States to complete a marriage within ninety days of entry. If one was already a spouse of a U.S. citizen, he or she would frequently have to wait for as long as one year, or longer, for the INS to approve the initial petition and the Department of State to issue the visa. This resulted in spouses being separated for an unduly long period while waiting for their applications to be processed. The LIFE Act addressed this lengthy separation by creating a new nonimmigrant classification for spouses of citizens and their children.
The LIFE Act introduces three new requirements for eligibility under the K-3 visa: First, the alien must already be married to a U.S. citizen who has filed a relative visa petition on his or her behalf with the INS for purposes of a immigrant visa; second, the same U.S. citizen spouse must be petitioning on that alien's behalf to obtain a nonimmigrant visa; and third, the alien must be seeking to enter the United States to wait the "availability of an immigrant visa."
The threshold criterion for K-3 eligibility is for the citizen spouse to have filed a Form I-130 visa petition for the spouse. Also, a Form I-129F, which is the petition used for alien fiancés, must be filed and approved by the Service for the purpose of obtaining K-3/K-4 nonimmigrant status for a spouse and any children of the spouse. The Form I-129F must be completed and submitted to: U.S. Immigration and Naturalization Service, P.O. Box 7218, Chicago, IL 60680-7218.
The K-4 child is dependent on the K-3 parent for his or her status. Therefore, the K-4 child must be under 21 years of age and unmarried in order to continue to meet the definition of child under the Act. K-4 eligibility or status extinguishes when the child turns 21.
As the K-4 is a derivative visa to the K-3, the regulations do not require an I-130 petition to be filed on behalf of a K-4 child. However, it is highly recommended that the U.S. petitioning spouse also file one for the child. Although a child may be able to enter on the nonimmigrant K-4 visa without an I-130, the latter would be required as the basis for the child to ultimately obtain lawful permanent residence in the United States.
There may be times when a child who is 18 but below 21 could possibly be eligible for the K-4 visa but not as a beneficiary of an I-130 petition leading to permanent residency. Under INA Section 101(b)(1), a step-child can only be considered a "child" for immigration purposes if the relationship was formed before the child reached the age of 18. Therefore, when the step relationship is formed after the age of 18, the U.S. step-parent may not be able to sponsor the step-child although he or she could still accompany the natural K-3 parent on a K-4 visa. A child caught in such a gap would presumably be sponsored by the natural parent when he or she becomes a permanent resident. As this would take several years, the K-4 child would have to remain in the U.S., upon turning 21, in another nonimmigrant classification.
Contrary to earlier interpretations from the Department of State, the fact that an I-130 petition gets approved would not cut off K-3/K-4 benefits to the spouse and child waiting overseas for the immigrant visa interview. The INS has recommended that any I-130 petition being filed for purposes of triggering the K-3/K-4 visa benefit should indicate that the alien will be adjusting in the United States subsequently in question 21 of Form I-130. In cases where petitioning spouses previously stated on an approved Form I-130 that the beneficiary would visa process abroad, they should now notify the INS that their spouses intend to apply for K-3/K-4 nonimmigrant visa and will apply for adjustment of status for lawful permanent residency in the United States.
The benefit from such a strategy is doubtful, as it may be quicker to process the immigrant visa at the consular post as opposed to filing and waiting for an approval of the I-129F petition, and then processing the K-3/K-4 at the post. The only possible advantage for the latter approach is if the petitioning spouse is not yet ready to execute an Affidavit of Support, Form I-864, which is not required in a K-3/K-4 consular processing. Of course, Form I-864 would need to be submitted later when filing the adjustment of status application in the U.S.
Once Form I-129F is approved, the INS will notify the American consulate abroad specified on the petition. Although the new K-3/K-4 visa is a nonimmigrant classification, the alien spouse or child will still be required to meet the Department of State's requirements and regulations as though they were applying for an immigrant visa. This would include a medical examination through the submission of a completed Form I-693. However, as noted above, the Affidavit of Support, Form I-864, is not required during K-3/K-4 processing and would only need to be submitted at the time of adjustment of status in the United States. A K-3/K-4 applicant may also be subject to the 3/10-year bars.
The K-3/K-4 visa will be valid for a period of two years, after which an extension would need to be sought on Form I-539. Note that the visa can only be applied at an overseas consulate and the regulations clearly do not permit a spouse or child already in the United States to change status to K-3/K-4.
A K-3/K-4 visa holder will need to file Form I-765, Application for Employment Authorization, with the INS to obtain evidence of eligibility to work legally in the United States.
The INS regulations also provide that K-3/K-4 nonimmigrant's status will terminate within thirty days following a denial of an I-130 petition or the denial of the alien's form I-485 adjustment of status application. If any of these are denied, the alien will have thirty days to leave the United States.
K-3 classification will also end upon the spouse's divorce from the U.S. citizen. K-4 status will end when the child turns 21 or upon his or her marriage before 21.
K-3/K-4 status will also be terminated after two years if the alien does not file a request for extension with the INS. In order for an application for an extension to be approved, the alien must show that one of the following has been filed and is awaiting approval: (1) the Form I-130 petition, (2) an application for an immigrant visa (presumably at an overseas consular post), or (3) a Form I-485 adjustment of status application.
Other than a "gap" child who cannot be the beneficiary of an I-130 petition, there is little practical effect for extending a K-3 visa. It is expected that the K-3 spouse would apply for adjustment of status upon arrival in the United States. Another marginal benefit to extending a K-3 visa is that it allows for travel without advance parole while an application for adjustment of status is pending. The regulation also provides that a K-3/K-4 nonimmigrant may file for an extension after a Form I-130 has been approved, without filing either an application for adjustment of status or an immigrant visa upon a showing of "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 adjustment of status application by the K-3/K-4 alien. The event or events must have taken place since the alien entered the United States as a K-3/K-4 nonimmigrant.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org