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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: August 14, 2001 (Volume 66, Number 157)]
[Rules and Regulations]               
[Page 42587-42595]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au01-1]                         
========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.
========================================================================
[[Page 42587]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212, 214, 245, 248, and 274a

[INS No. 2127-01]
RIN 1115-AG12

``K'' Nonimmigrant Classification for Spouses of U.S. Citizens 
and Their Children Under the Legal Immigration Family Equity Act of 
2000

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations to implement section 1103 of the Legal 
Immigration Family Equity (LIFE) Act, Public Law 106-553. Section 1103 
of the LIFE Act creates a new nonimmigrant classification for the 
spouses of U.S. citizens and their children. Previously, spouses of 
U.S. citizens and their children who were the beneficiaries of pending 
or approved petitions could enter the United States only with immigrant 
visas. Following the enactment of LIFE, spouses of U.S. citizens and 
their children who are the beneficiaries of pending or approved visa 
petitions can be admitted initially as nonimmigrants and adjust to 
immigrant status later while in the United States. This regulation 
implements the new K nonimmigrant classification for the spouses of 
U.S. citizens and their children, and establishes filing and 
adjudication procedures for it. Following publication of this interim 
rule, aliens will be able to apply for this new K nonimmigrant status.

DATES: Effective date: This interim rule is effective August 14, 2001.
    Comment date: Written comments must be submitted on or before 
October 15, 2001.

ADDRESSES: Please submit written comments to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure 
proper handling, please reference INS No. 2127-01 on your 
correspondence. You may also submit comments electronically to the 
Service at INSREGS@USDOJ.GOV. When submitting comments electronically, 
please include INS number 2127-01 in the subject box. Comments are 
available for public inspection at the above address by calling (202) 
514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Michael Hardin, Office of 
Adjudications, Immigration and Naturalization Service, 425 I Street, 
NW., Room 3214, Washington, DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

I. Introduction and background
    A. Overview of LIFE section 1103
    B. Analysis of LIFE section 1103
    C. Terminology of new classifications
II. Obtaining K-3/K-4 Status
    A. Eligibility
    B. Application procedures
    C. Admission
III. Maintaining K-3/K-4 nonimmigrant status
    A. Changing to or from K-3/K-4 nonimmigrant status
    B. Employment authorization
    C. Extension of status
    D. Termination of status
IV. Adjusting status from K-3/K-4 to permanent resident
    A. Section 216 and conditional resident status
    B. Travel outside of the United States while in K-4 status
    C. Medical examinations
    D. Affidavit of support

I. Introduction and Background

    The LIFE Act, enacted on December 21, 2000, as Public Law 106-553, 
made several significant changes to the Immigration and Nationality Act 
(Act). A brief overview and a more thorough analysis of the LIFE Act 
are included as follows.

A. Overview of LIFE Section 1103

    LIFE created a new nonimmigrant classification for spouses and 
children of U.S. citizens at section 101(a)(15)(I)(ii) of the Act. 
Previously, the ``K'' nonimmigrant classification was limited to a 
fiancee or fiancee of a U.S. citizen seeking to enter the U.S. to 
complete a marriage within 90 days of entry, and the fiance/fiancee's 
child.
    Prior to the passage of LIFE, aliens who were married to a U.S. 
citizen and living abroad had to obtain an immigrant visa outside of 
the United States prior to admission. Although spouses of U.S. citizens 
are not subject to numerical limitations and, therefore, do not need to 
wait for a current visa number under section 201(b)(2)(A) of the Act, 
the process for immigrants is more burdensome and lengthy than for 
nonimmigrants. Presently, aliens who wish to immigrate to the United 
States to be with their U.S. citizen spouse frequently have to wait for 
as long as 1 year for the Service to approve the initial petition and 
the Department of State to issue the immigrant visa. This results in 
the family members being separated while waiting for their applications 
to be processed. The LIFE Act addresses this lengthy family separation 
by creating a nonimmigrant classification for spouses to citizens and 
their children to expedite their entry to the United States.

B. Analysis of LIFE Section 1103

    Subsection 1103(a) of LIFE amends section 101(a)(15)(K) of the Act. 
Prior to LIFE, the K nonimmigrant classification was limited to the 
fiance/fiancee of a U.S. citizen and the fiance/fiancee's children. 
This classification still exists, and LIFE section 1103(a) redesignates 
it as section 101(a)(15)(K)(i) of the Act, with the fiance/fiancee's 
children now classified at section 101(a)(15)(K)(iii) of the Act.
    LIFE section 1103(a) adds a classification for the spouse of a U.S. 
citizen at section 101(a)(15)(K)(ii) of the Act. The new section 
101(a)(15)(K)(ii) of the Act has three requirements for an alien to 
obtain this nonimmigrant classification. 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 Service for purposes of an immigrant visa. 
Second, that same U.S. citizen spouse must be petitioning on that 
alien's behalf to

[[Page 42588]]

obtain a nonimmigrant visa. Third, the alien must be seeking to enter 
the United States to wait the ``availability of an immigrant visa.'' 
Section 1103(a) also classifies the children of (K)(ii) aliens under 
section 101(a)(15)(K)(iii) of the Act.
    Subsection 1103(b) adds a new subsection (p) to section 214 of the 
Act, which generally covers admission of nonimmigrants. Subsection 
214(p) of the Act is divided into three paragraphs:
     The new section 214(p)(1) of the Act requires the 
petitioner to file a petition in the United States for the purpose of 
obtaining nonimmigrant K status for his or her spouse. The petition 
must be approved by the Service prior to the issuance of the 
nonimmigrant visa by the consular officer abroad.
     The new section 214(p)(2) of the Act requires the alien 
described in section 101(a)(15)(K)(ii) of the Act to be in possession 
of the nonimmigrant K visa as a spouse at the time of admission, and 
that the visa must be issued from the same foreign state in which the 
marriage occurred, if the marriage occurred outside of the United 
States. This rule provides an exception when the United States does not 
have a visa issuing post in that state.
     The new section 214(p)(3) of the Act provides that the new 
nonimmigrant K status will terminate 30 days following the denial of 
the relative visa petition or application for immigrant status based on 
such a petition. Therefore, if the Form I-130, Petition for Alien 
Relative, the immigrant visa application, or the adjustment of status 
application of an alien admitted under section 101(a)(15)(K)(ii) of the 
Act, or the child of such an alien who accompanied or followed to join 
such an alien, is subsequently denied, the spouse and child's K 
nonimmigrant status will terminate automatically 30 days later and the 
alien(s) must leave the United States. For purposes of termination of 
the new K statuses, these petitions or applications are denied when the 
applicable administrative appeal has been exhausted, or the period to 
appeal has expired.
    Section 1103(c) of LIFE makes conforming amendments to sections 
214, 216, and 245 of the Act. Section 214(d), which covers the issuance 
of a K nonimmigrant visa to a fiance or fiancee of a U.S. citizen, is 
amended to cover only section 101(a)(15)(K)(i) of the Act, which now 
corresponds only to the fiance/fiancee of a U.S. citizen.
    LIFE section 1103(c) also adds references to the new section of the 
Act covering nonimmigrant K spouses (section 214(p)) to two sections of 
the Act dealing with combating marriage fraud. A reference to section 
214(p) is added to section 216(b)(1)(B) of the Act, so that any finding 
by the Service that a fee or other consideration was given for the 
purpose of filing the relative visa petition or the petition to obtain 
K nonimmigrant status for a spouse results in termination of the K 
status and the alien being placed in removal proceedings. (This does 
not apply to a fee or other consideration paid to an attorney for 
assistance in preparation of a lawful petition.) A reference to section 
214(p) is also added to section 216(d)(1)(A)(ii) of the Act, so that at 
the time the alien spouse attempts to remove conditions on the 
permanent resident status, he or she will be required to affirm that no 
fee (with the same exception) was given to file the original petition 
in which the alien obtained nonimmigrant K status.
    Section 1103(c) of LIFE amends section 245 of the Act. Section 
245(d) of the Act is amended by striking language pertaining 
specifically to fiance/fiancees, so that all who adjust status to 
permanent resident from the K nonimmigrant classification, as a spouse, 
fiance/fiancee, or a minor child of either, are subject to the 
conditional residency requirements of section 216 of the Act. Further, 
a K nonimmigrant classification, whether a spouse, a fiance/fiancee, or 
the child of either, may only apply for adjustment of status based on 
the alien spouse's (or, in the case of a minor child, the alien 
parent's) marriage to the citizen who filed the original petition to 
obtain that alien's status under section 101(a)(15)(K) of the Act.
    Also, LIFE section 1103(c) amends section 245(e)(3) of the Act. 
Section 245(e)(3) provides for a ``bona fide'' marriage exeption to the 
general rule that an alien may not adjust to permanent resident status 
while in exclusion, deportation, or removal proceedings. In order for 
the marriage to be ``bona fide'' and for the applicant to qualify for 
this exception, the applicant must show, among other things, that no 
fee was given for the filing of a petition for the alien spouse and/or 
child. LIFE adds any petition filed as part of the new section 214(p) 
to the list of petitions to which this applies.
    Finally, section 1103(d) of LIFE states that the law became 
effective on the date the legislation was enacted, which was December 
21, 2000.

C. Terminology of New Classifications

    To date, ``K'' nonimmigrants have been designated as ``K-1,'' for 
the fiancee of a U.S. citizen, or ``K-2,'' for their children 
accompanying them or following to join. LIFE amended the Act to 
redefine section 101(a)(15)(K)(ii) aliens as U.S. citizen spouses, and 
section 101(a)(15)(K)(iii) as the children of either a fiance(e) 
entering under (K)(i) or a spouse entering under (K)(ii). For the sake 
of consistency, the Service will not change the original classification 
designations of the fiance(e)s and their accompanying children, which 
will remain ``K-1'' and ``K-2,'' respectively. United States citizen 
spouses and children will be designated as ``K-3'' and ``K-4'' 
respectively. While all of this does not precisely match the statutory 
sections of the Act, the Service feels that changing well-established 
nonimmigrant classification designations would cause more confusion 
than this slight deviation from the statutory numbering. We invite 
comment on this decision. This regulation adds ``K-3'' and ``K-4'' to 
the Service's list of classification designations at 8 CFR 214.1(a)(2).

II. Obtaining K-3/K-4 Status

    This regulation adds paragraphs concerning the new K nonimmigrant 
classification (K-3/K-4) to 8 CFR 214.2(k). The original sections of 8 
CFR 214.2(k) dealing with fiance/fiancees and their children will 
remain the same with one exception. This regulation removes 
Sec. 214.2(k)(6)(i), which applied only to immigrant visas issued prior 
to November 10, 1986, since it is now clearly out of date. This section 
is removed and reserved. The K nonimmigrant spouse provisions added at 
Sec. 214.2(k) are discussed in this section.

A. Eligibility

    Only spouses of U.S. citizens and their children are eligible for 
the new K-3 or K-4 nonimmigrant classification. Other relatives of U.S. 
citizens, as well as any relatives of lawful permanent residents, are 
not eligible. Further, the citizen petitioner must have filed Form I-
130, Petition for Alien Relative, with the Service on behalf of the 
spousal beneficiary seeking a K-3 nonimmigrant classification. A Form 
I-129F, Petition for Alien Fiance, must also be filed with and approved 
by the Service for the purposes of obtaining K-3/K-4 nonimmigrant 
status for a spouse and any children of the spouse as defined in 
section 101(b)(1)(A) through (E) of the Act. If there is more than one 
beneficiary, only one Form I-129F need be filed.
    Note that the U.S. citizen petitioner is not required to file a 
Form I-130 immigrant visa petition on behalf of the alien's children 
seeking K-4 nonimmigrant status, since K-4 is

[[Page 42589]]

merely a derivative nonimmigrant classification. Nonimmigrant K-4's are 
dependent on the K-3 for their status, similar to the relationship 
between the K-1 and the K-2. Therefore, K-4 eligibility is restricted 
to those whose parents are eligible for a K-3 nonimmigrant 
classification. K-4 aliens must be under 21 years of age and unmarried, 
in order to continue to meet the definition of ``child'' under section 
101(b)(1) of the Act.
    However, nothing in the law prevents the U.S. citizen stepparent 
from filing Form I-130 for the child, and such action would be prudent 
and beneficial to the child. The child will not be able to adjust 
status to that of a lawful permanent resident (LPR) or even file an 
application for that status until the U.S. citizen stepparent files 
Form I-130 on the child's behalf. If the U.S. citizen never files the 
Form I-130 on behalf of the child, the biological parent may do so 
after immigrating, but the child may have to wait for a visa number to 
become available. In addition, since the parent would no longer be in 
K-3 status but would be an LPR, the child would no longer be in lawful 
K-4 status, since it is merely a derivative classification.
    In addition, the Service interprets the word ``availability'' in 
the phrase ``awaiting the approval of such petition and the 
availability to the applicant of an immigrant visa'' in the new section 
101(a)(15)(K)(ii) of the Act to mean the approval of the adjustment of 
status application. This appears to comport with the Congressional 
intent even though the concept of visa ``availability'' in other 
contexts (sections 202, 203, and 245 of the Act) relates to per country 
and preference limitations. Read literally, the language in (K)(ii) 
could mean that those aliens with approved Form I-130 petitions on 
their behalf would not be eligible for K-3/K-4 status. This is because 
those aliens would not need to await the approval of the petition and 
because no visa number is needed by an immediate relative of a U.S. 
citizen. A visa is available as soon as the Form I-130 is approved. 
However, since the new section 214(p)(3) of the Act provides that the 
(K)(ii) or (K)(iii) nonimmigrant status shall terminate 30 days after 
the denial of the Form I-130, the application for an immigrant visa, or 
the adjustment of status application, the term ``availability of an 
immigrant visa,'' appears to have a different meaning than the same 
term in sections 202, 203, and 245 of the Act. The Service believes 
that Congress did not intend to create a nonimmigrant classification 
for spouses and children of U.S. citizens that is based on the filing 
of a Form I-130 petition, only to see that classification cut off to 
them part of the way through the immigration process. However, the 
Service also believes that Congress did not intend for this K-3/K-4 
status to be of indefinite duration and that status holders must be 
taking steps to ultimately immigrate.
    To ease applicant burden and to avoid any confusion, the Service 
recommends that petitioners whose alien spouses wish to first obtain a 
K-3/K-4 visa abroad and later adjust while in the United States so 
state in Question 21 of Form I-130. Petitioners may state in this 
question that their beneficiary will apply for adjustment of status in 
the United States. Petitioners who have previously stated on an 
approved Form I-130 that the beneficiary would visa process abroad 
should notify the Service that they now intend to apply for a K-3/K-4 
nonimmigrant visa and will be applying for adjustment of status to that 
of lawful permanent resident in the United States. The Service will 
then request that the Department of State's National Visa Center (NVC) 
return the approved Form I-130 to the Service Center with jurisdiction.

B. Application Procedures

    As stated in the previous paragraph, an alien seeking admission as 
a K-3 or K-4 must have the citizen petitioner file with the Service, 
Form I-130, with fee, on the alien spouse's behalf. The citizen 
petitioner must also file Form I-129F, with fee, for the purposes of 
obtaining nonimmigrant K-3/K-4 status for the spouse/children. Once the 
current Form I-129F is approved, the Service will notify the American 
consulate abroad specified on the petition. If the marriage took place 
abroad, the Service will notify a consulate in the country where the 
marriage took place. However, in the event that country does not have a 
visa-issuing post, the Department of State has determined that the visa 
must be issued at the consular post having jurisdiction to issue 
immigrant visas for nationals of that country. (See State Department 
regulations at 22 CFR 41.61.) The alien beneficiary may then appear at 
the consulate to apply for the nonimmigrant visa from the Department of 
State.
    The Form I-129F is a temporary solution to the need for a new 
Service form to deal with the requirements of section 214(p)(1) of the 
Act, added by LIFE section 1103(b). As previously stated, section 
1103(b) creates the new section 214(p)(1) of the Act, stating that all 
beneficiaries under section 101(a)(15)(K)(ii) of the Act and their 
children must have had a petition approved by the Service on their 
behalf to obtain K-3/K-4 status. The Service plans to design a new form 
for this purpose, but because LIFE is already effective and a process 
is needed to implement it immediately, the Service will use the Form I-
129F until further notice. Applicants using Form I-129F to apply for K-
3/K-4 status should omit sections (B)(18) and (B)(19) as instructed on 
the new version of the form.
    Although the new K-3/K-4 is a nonimmigrant classification, the 
alien spouse will still be required to meet certain State Department 
requirements and regulations as though they were applying for an 
immigrant visa. This is consistent with treatment of U.S. citizens' 
fiancees and their children entering as K-1/K-2's, and recognizes the 
nature of this nonimmigrant classification. Although entering as 
nonimmigrants, these aliens plan to ultimately stay in the United 
States permanently. Regulations pertinent to State Department ``K'' 
nonimmigrant processing can be found at 22 CFR 41.81.
    In addition, applicants for the new K-3/K-4 classification are 
subject to section 212(a)(9)(B) of the Act. LIFE did not exempt aliens 
applying for the new K nonimmigrant classification from the 3- and 10-
year bars of section 212(a)(9)(B) of the Act, as it did for the other 
new visa category, the V classification, that LIFE created at LIFE 
section 1102(b). The Service does not anticipate that many potential K 
nonimmigrants will be affected by this provision, as many of them will 
be entering the United States for the first time. However, in order to 
ensure that the K-3/K-4 nonimmigrants have the opportunity to apply for 
the same waiver provisions as do the K-1/K-2's, 8 CFR 212.7(a) is 
amended to include them.
    Applications for K-3/K-4 status should be sent to the following 
address: Immigration and Naturalization Service, P.O. Box 7218, 
Chicago, IL 60680-7218

C. Admission

    Aliens appearing at U.S. Ports-of-Entry (POE) with a valid 
nonimmigrant K-3 visa will be inspected, and, if admissible, will be 
admitted into the United States for a period of 2 years. Similarly, an 
alien appearing at a POE with a valid nonimmigrant K-4 visa will be 
admitted for a period of 2 years or until the day before the alien's 
21st birthday, whichever is shorter. 8 CFR 212.1(h) will be amended to 
include spouses of U.S. citizens under the K provision requiring visa 
documentation as a condition of admission. Also, 8 CFR 214.2(k)(8) is 
added, which includes the admission periods.

[[Page 42590]]

III. Maintaining K-3/K-4 Nonimmigrant Status

    K-3/K-4 nonimmigrant aliens are authorized to remain in the United 
States for the period of time specified on their Form I-94. Specific 
issues arising during this admission period are discussed in the 
following paragraphs.

A. Changing to or From K-3/K-4 Nonimmigrant Status

    The LIFE Act does not directly address whether nonimmigrants may 
change from another nonimmigrant status to a K-3/K-4 while in the 
United States. However, the Joint memorandum on LIFE issued by Congress 
states that the K visa is intended ``* * * to be a speedy mechanism for 
the spouses and minor children of U.S. citizens to obtain their 
immigrant visas in the U.S., rather than wait for long periods of time 
outside the U.S.'' The implication in this statement is that aliens 
seeking the benefits of the K-3/K-4 classification would not already be 
in the United States.
    In addition, section 1102 of LIFE provides a specific change of 
status provision for the new V visa but section 1103 omits such a 
provision for a nonimmigrant K-3/K-4 visa. Further, section 214(p)(1) 
suggests that action by the consular officer abroad is required after 
the Attorney General approves the K petition.
    Therefore, the Service has determined that nonimmigrant aliens will 
not be able to change from another nonimmigrant status to K status 
while in the United States. Overall, the purpose of the ``K'' 
nonimmigrant classification, in both the original K-1/K-2 form and the 
additions from LIFE, is family reunification. United States citizens 
whose spouses and children are in the United States are already unified 
and therefore do not fall within the K-3/K-4 classification's purposes. 
Accordingly, 8 CFR 248.1 is amended to prohibit change of status to all 
nonimmigrant classifications in section 101(a)(15)(K) of the Act, 
including those added by LIFE section 1103.
    Congress, when passing LIFE, did not amend section 248 of the Act, 
which specifically prohibits K nonimmigrants from changing to any other 
nonimmigrant classification. Therefore, K-3 and K-4 nonimmigrants may 
not change to any other nonimmigrant classification. This is comparable 
to the prohibition against adjustment of a K to LPR on any basis other 
than the marriage on which the K petition was based, as stated in 
section 245(d) of the Act.
    The Service notes, however, that neither of these prohibitions will 
affect the ability of alien spouses and children of U.S. citizens in 
the United States to remain. A United States citizen's spouse and 
children remain eligible to file for permanent residency at any time if 
the petitioner files Form I-130, and the beneficiary files Form I-485, 
Application for Adjustment to Permanent Residence. While these are 
pending, the spouse of the U.S. citizen and his or her child may remain 
in the United States without accruing unlawful presence, and may obtain 
work authorization and permission to travel outside the United States 
and return.

B. Employment Authorization

    Aliens admitted to the United States as a K-3 or K-4 nonimmigrant 
will be authorized to work incident to status as are K-1 and K-2 
nonimmigrants. However, similar to what is required of K-1 and K-2 
aliens, K-3 and K-4 nonimmigrants will still need to file Form I-765, 
Application for Employment Authorization, and the fee, with the Service 
to obtain evidence of eligibility to work legally in the U.S. This 
regulation adds the K-3/K-4 nonimmigrant classification to 8 CFR 
274a.12(a)(9).
    However, aliens classified as K-3/K-4 seeking to renew employment 
authorization documents will be required to show that they are pursuing 
the immigration process and still meet the necessary nonimmigrant 
classification by having an application or petition awaiting approval. 
In order to renew employment authorization as a K-3/K-4, the applicants 
will have to show that the Form I-130 has been filed on their behalf, 
and, if the Form I-130 has been approved, that their application for an 
immigrant visa or their application for adjustment of status has been 
filed with the Service or Department of State, as applicable, in order 
to receive a second employment authorization document. This renewal may 
be requested concurrently with the application for extension of stay, 
and is discussed in paragraph (C) below.
    Applications for employment authorization for those in K-3/K-4 
status should be sent to the following address: Immigration and 
Naturalization Service, P.O. Box 7218, Chicago, IL 60680-7218.

C. Extension of Status

    Following the 2-year admission period, a K-3 and K-4 nonimmigrant 
may apply with the Service for an extension of stay using Form I-539, 
Application for Extension of Stay, in 2-year increments. Since the 
Service believes that the purpose of the K-3 and K-4 nonimmigrant 
classifications is to provide family reunification while the 
immigration process is ongoing, the Service will require an alien 
seeking an extension of stay to have filed a Form I-485 or an 
application for an immigrant visa. If Form I-485 or application for an 
immigrant visa has not been filed, the alien must be still awaiting 
approval of the pending Form I-130, in order to be eligible for an 
extension of stay, or be able to provide the Service with ``good 
cause'' as required by the new 8 CFR 214.2(k)(10)(ii) added by this 
regulation. In addition, the alien must continue to be married to the 
U.S. citizen spouse who petitioned for the alien's K status. Finally, 
the U.S. citizen parents (including stepparents) of K-4 aliens should 
file Form I-130 on the child's behalf at the earliest possible time, if 
they have not already done so. These requirements will ensure that all 
aliens who enter as K-3 and K-4 nonimmigrants ultimately continue the 
immigration process to become permanent residents and continue to meet 
the statutory definition of the K-3/K-4 nonimmigrant classification.
    If the Service intends to deny an application filed for an 
extension of K-3/K-4 status, the Service will send the applicant a 
notice of intent to deny and the basis for the proposed denial. The 
applicant will then have 30 days from the date of the notice to submit 
additional information in rebuttal. No appeal shall be available for 
Form I-539 denials which are filed for an extension of K-3/K-4 status, 
pursuant to 8 CFR 214.1(c)(5).
    The Service expects that this requirement will have no impact on 
the majority of aliens entering as K-3 or K-4 nonimmigrants. Once in 
the United States, those in K-3 or K-4 status may file for adjustment 
of status at any time following the approval of their Form I-130 
petition as immediate relatives of U.S. citizens, and most will do so 
very quickly after such approval. However, the Service believes that 
Congress did not intend the K-3 and K-4 classification to be one which 
would be of indefinite duration or one which could be extended in 
perpetuity without the alien spouse or child taking steps to become a 
permanent resident. For this purpose, and to deter marriage fraud, the 
Service will require the Form I-485 to be filed prior to allowing an 
extension of stay as a K-3 or K-4. This regulation adds this 
requirement for K-3/K-4 aliens seeking an extension of stay to 8 CFR 
214.1(c)(2), which generally covers extensions, by requiring these 
aliens to comply with 8 CFR 214.2(k)(10), discussed in paragraph D 
below.

[[Page 42591]]

D. Termination of Status

    Pursuant to LIFE section 1103(c), K-3/K-4 nonimmigrant status will 
terminate 30 days following the denial of one of the following: The 
Form I-130, filed on the alien's behalf by the citizen petitioner; an 
application for an immigrant visa by the alien; or the alien's Form I-
485 adjustment of status application. If any of these is denied, the 
alien will have 30 days to leave the United States or will become 
deportable under section 237(a)(1) of the Act and will begin accruing 
unlawful presence for purposes of sections 212(a)(9)(B) and (C) of the 
Act. In addition, the alien will no longer be authorized to work in the 
United States, and if the alien continues to work without 
authorization, this will be an additional basis for removal. These 
restrictions are added to the regulations at 8 CFR 214.2(k)(10). If the 
K-3's status is terminated, the derivative K-4's status will also be 
simultaneously terminated.
    In addition, the Service notes that for purposes of the new section 
214(p)(3)(A) of the Act and 8 CFR 214.2(k)(2)(viii), that 
``revocation'' will have equal meaning with ``denial.'' If either the 
petitioner's Form I-130, or either of the alien's applications listed 
in LIFE section 1103(c) is denied or is approved but later revoked, the 
alien's K-3/K-4 nonimmigrant status will terminate 30 days later. This 
is consistent with the established notion that the alien ultimately 
bears the burden of proof of eligibility for the benefit sought until 
the visa is issued or adjustment is granted. Events that can cause the 
revocation of petitions are listed in 8 CFR part 205, and include the 
divorce of the citizen petitioner from the alien beneficiary. Congress 
clearly did not intend to allow K-3/K-4 aliens to remain in the United 
States following the dissolution of the marriage that allowed them to 
enter in the first place, and this interpretation assists in avoiding 
that result.
    K-3/K-4 status will also be terminated after 2 years if the alien 
does not file a request for extension of stay with the Service. 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, or (3) a Form I-485 adjustment of status application. 
The Service believes that if none of these factors is present, the 
alien is not ``awaiting approval'' of anything and therefore does not 
meet the definition of section 101(a)(15)(K)(ii) of the Act.
    Finally, K-4 status will be terminated when the alien turns 21 
years of age or is married. Section 101(a)(15)(K)(iii) of the Act 
limits the K-4 classification to the ``minor children'' of K-3 aliens. 
If the K-4 alien turns 21, he or she is no longer a child as defined in 
section 101(b)(1) of the Act. Therefore, in the event either of these 
occurs, the K-4 alien's status will terminate. This is another 
incentive for the citizen petitioner to file Form I-130 on behalf of 
the K-4 alien child as soon as possible, so that the child may adjust 
status as soon as possible. Once the K-3 spouse obtains LPR status, 
there will be no basis for the K-4 dependent's status.

IV. Adjusting Status From K-3/K-4 to Permanent Resident

    As previously stated, the Service expects most K-3/K-4 aliens to 
quickly file for adjustment of status following admission to the United 
States. Those admitted as K-3/K-4 aliens do not have to wait for a visa 
number to become current and may apply for adjustment at any time 
following the filing of the Form I-130 petition (or both may be filed 
concurrently for the K-4). This section therefore explains some of the 
issues relating to adjustment from K-3/K-4 status to permanent resident 
status.

A. Section 216 and Conditional Residence Status

    As previously noted in the preamble, LIFE amends section 245(d) of 
the Act by removing the language relating specifically to fiance(e)s 
and broadens the section to now cover anyone admitted under section 
101(a)(15)(K) of the Act. Accordingly, those adjusting from K-3/K-4 
status to permanent resident status may only do so as a result of a 
marriage to the original U.S. citizen petitioner who filed a petition 
on behalf of the K-3/K-4 nonimmigrants. In addition, they are subject 
to the requirement of conditional residency of section 216 of the Act. 
Section 216 of the Act requires aliens who are adjusting status based 
on a marriage of less than 24 months in duration to become 
``conditional permanent residents'' following adjustment. Conditional 
permanent residents have the same status, rights, and privileges as 
permanent residents, except that they must file a petition to remove 
the conditions with the Service within 90 days of the 2-year 
anniversary of receiving conditional permanent resident status. This 
process is outlined in section 216 of the Act and 8 CFR part 216.
    The Service notes, however, that aliens who are married longer than 
24 months at the time of adjustment are not subject to the conditional 
residency requirements. Section 245(d) of the Act requires aliens 
adjusting from K status to be subject to the conditions of section 216 
of the Act, but section 216(a) of the Act states that section 216 of 
the Act as a whole only applies to those who meet the definition of 
``alien spouse'' of section 216(g)(1) of the Act. Section 216(g)(1) of 
the Act provides that adjustment on the basis of marriage that took 
place more than 24 months before the alien obtains lawful permanent 
resident status is not granted on a conditional basis. Therefore, 
aliens who end up adjusting status 2 years or more following the 
original marriage will not be subject to the conditional residency 
requirements, although they will still have to meet all of the other 
criteria for adjusting status.

B. Travel Outside of the U.S. While in K-3/K-4 Status

    Aliens present in the United States in a K-3/K-4 nonimmigrant 
classification may travel outside of the United States and return using 
their nonimmigrant K-3/K-4 visa, even if they have filed for adjustment 
of status in the United States prior to departure. The Service 
recognizes that although the K-3/K-4 status is a nonimmigrant 
classification, aliens entering with this status have an intent to stay 
in the United States permanently. The definition of a K-3/K-4 
nonimmigrant alien does not require that such an alien have a foreign 
residence that he or she has no intent of abandoning. Such aliens are 
married to a U.S. citizen and are coming to the U.S. to live with their 
spouse. Accordingly, the Service will not presume that departure 
constitutes abandonment of an adjustment application that has been 
filed.
    This rule is different for a K-3/K-4 nonimmigrant than for fiances 
and their children (K-1/K-2). The Service notes that applicants for 
adjustment of status who entered as a K-1 or K-2 nonimmigrant, and who 
later filed to adjust status, will continue to be required to obtain 
advance parole to avoid abandonment of their adjustment application 
upon departure, as provided in 8 CFR 245.2(a)(4). This is the case 
because K-1/K-2 aliens have only a 90-day period of admission prior to 
being required to marry the citizen petitioner and file for an 
adjustment application. Unlike those in K-3/K-4 status, K-1/K-2 aliens 
will have no status or visa to fall back on following the filing of 
their adjustment application.

[[Page 42592]]

C. Medical Examinations

    According to 8 CFR 245.5, aliens seeking to adjust status are 
required to undergo a medical examination performed by a designated 
civil surgeon to determine whether they are inadmissible under section 
212(a)(1)(A) of the Act. To date, applicants for K nonimmigrant visas 
have been required to obtain a medical examination abroad pursuant to 
Department of State regulations at 22 CFR 41.81 prior to entry, and the 
medical examination is not repeated if they apply for adjustment of 
status within 1 year of the date the examination was performed. They 
are, however, required to submit with the adjustment of status 
application a vaccination assessment completed by a designated civil 
surgeon in order to establish their compliance with the vaccination 
requirements under section 212(a)(1)(A)(ii) of the Act.
    The Service will continue this same policy for the K-3/K-4 
nonimmigrants. K-3/K-4 nonimmigrants who file their adjustment of 
status application within 1 year from the date of the medical 
examination overseas will not have to submit an additional medical 
examination. However, the Service notes that applicants whose medical 
examinations overseas revealed a ``Class A'' or ``Class B'' condition 
(as defined by 42 CFR 34.2(b)) must establish upon application for 
adjustment of status that they complied with those conditions imposed 
on the initial admission. Failure to comply with those conditions means 
that a new medical examination will be required.

D. Affidavit of Support

    The Service also notes that aliens entering as K-3/K-4 nonimmigrant 
aliens will not be subject to the Affidavit of Support requirements of 
section 213A of the Act and 8 CFR part 213a. Instead, they will be 
treated the same as K-1/K-2 nonimmigrants and be required to file a 
Form I-864, Affidavit of Support Contract Between Sponsor and Household 
Member, at the time of adjustment. No Service regulatory changes are 
necessary for this point, but the Service felt this was still a 
relevant point for this supplemental section, as the Form I-864 is a 
significant part of the adjustment process as well as for the immigrant 
visa process abroad.

Good Cause Exception

    The Service's implementation of this rule as an interim rule, with 
provisions for post-promulgation public comments, is based on the 
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The 
immediate implementation of this rule without prior notice and comment 
is necessary as Public Law 106-553 became effective December 21, 2000. 
This interim rule establishes the proper rules and filing procedures 
for the part of the LIFE Act creating a new ``K'' nonimmigrant 
classification for spouses and children of U.S. citizens. Publishing a 
proposed rule would not take effect immediately and because of the 
necessary comment period would result in a lengthy delay in processing 
for those already eligible for this benefit.
    In fact, eligible aliens have already filed applications with the 
Service's local offices while the Service has been in the process of 
drafting regulations. Many of these applicants are filing on the wrong 
forms, which do not provide sufficient information for adjudication 
decisions. The Service has no other recourse but to return the 
incorrect forms. Therefore, it is of significant importance that the 
Service publish regulations to establish appropriate procedures as soon 
as possible. Since prior notice and public comments with respect to 
this interim rule are impractical and contrary to public interest, 
there is good cause under 5 U.S.C. 553 to make this rule effective upon 
the date of publication in the Federal Register.

Regulatory Flexibility Act

    The Acting Commissioner of the Immigration and Naturalization 
Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), has reviewed this regulation and, by approving it, certifies 
that this rule will not have a significant economic impact on the 
substantial number of small entities because this regulation affects 
family members of U.S. citizens. It does not have an effect on small 
entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Act of 1995.

Small Business Regulatory Fairness Act of 1996

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or an ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Assessment of Regulatory Impact on the Family

    This immigration law facilitates reunification of families by 
according preferences to aliens who are the immediate relatives of 
citizens. This regulation creates an additional nonimmigrant 
classification through which these aliens may be reunified with their 
U.S. citizen family member. For this reason, the Acting Commissioner 
has determined, as provided by section 654 of the Treasury and General 
Government Appropriations Act, Public Law 105-277, Division A, section 
101(h), 122 Stat. 2681, 2681-528, that this interim rule will not have 
an adverse impact on the strength or stability of the family.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Execution Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The information collection requirement (Form I-129F) contained in 
this rule has been approved for use by the Office of Management and 
Budget under emergency review procedures contained in the Paperwork 
Reduction Act. The emergency clearance is good for 180 days from the 
date of OMB approval. Prior to its renewal by OMB, INS will publish a 
notice in the Federal Register soliciting comment on the

[[Page 42593]]

form. The OMB control number for this collection is contained in 8 CFR 
299.5, Display of control numbers.

List of Subjects

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and recordkeeping requirements.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INELIGIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.


    2. In Sec. 212.1, paragraph (h) is revised to read as follows:

Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (h) Nonimmigrant spouses, fiancees, fiances, and children of U.S. 
citizens. Notwithstanding any of the provisions of this part, an alien 
seeking admission as a spouse, fiancee, fiance, or child of a U.S. 
citizen, or as a child of the spouse, fiane, or finacee of a U.S. 
citizen, pursuant to section 101(a)(15)(K) of the Act shall be in 
possession of an unexpired nonimmigrant visa issued by an American 
consular officer classifying the alien under that section, or be 
inadmissible under section 212(a)(7)(B) of the Act.
* * * * *

    3. Section 212.7 is amended by:
    a. Revising the section heading;
    b. Revising the heading for paragraph (a);
    c. Revising paragraph (a)(1)(i).
    The revisions read as follows:

Sec. 212.7  Waiver of certain grounds of inadmissibility.

    (a) General.
    (1) * * *
    (i) Immigrant visa or K nonimmigrant visa applicant. An applicant 
for an immigrant visa or ``K'' nonimmigrant visa who is inadmissible 
and seeks a waiver of inadmissibility shall file an application on Form 
I-601 at the consular office considering the visa application. Upon 
determining that the alien is admissible except for the grounds for 
which a waiver is sought, the consular officer shall transmit the Form 
I-601 to the Service for decision.
* * * * *

PART 214--NONIMMIGRANT CLASSES

    5. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; sec. 643, Pub. L. 104-428, 110 Stat. 3009-708; Section 
141 of the Compacts of Free Association with the Federated States of 
Micronesia and the Republic of the Marshall Islands, and with the 
Government of Palau, 48 U.S.C. 1901, note and 1931 note, 
respectively; 8 CFR part 2.

    6. Section 214.1 is amended by:
    a. Revising paragraph (a)(1)(v);
    b. Revising the entry for ``101(a)(15)(K)(ii)'' and adding the 
entry for ``101(a)(15)(K)(iii)'' in proper sequence, in the table in 
paragraph (a)(2);
    c. Adding a note at the end of the table in paragraph (a)(2); and 
by
    d. Adding a sentence at the end of paragraph (c)(2).
    The revisions and additions read as follows:

Sec. 214.1  Requirements for admission, extension, and maintenance of 
status.

    (a) * * *
    (1) * * *
    (v) Section 101(a)(15)(K) is divided into (K)(i) for the fiance(e), 
(K)(ii) for the spouse, and (K)(iii) for the children of either;
* * * * *
    (2) * * *

------------------------------------------------------------------------
                 Section                            Designation
------------------------------------------------------------------------

                      *        *        *        *
  101(a)(15)(K)(ii)......................  K-3
  101(a)(15)(K)(iii).....................  K-2; K-4

                      *        *        *        *
------------------------------------------------------------------------

    Note: The classification designation K-2 is for the child of a 
K-1. The classification designation K-4 is for the child of a K-3.

* * * * *
    (c) * * *
    (2) * * * In order to be eligible for an extension of stay, 
nonimmigrant aliens in K-3/K-4 status must do so in accordance with 
Sec. 214.2(k)(10).
* * * * *

    7. Section 214.2 is amended by:
    a. Revising the paragraph heading for paragraph (k);
    b. Revising the reference cite to ``section 101(a)(15)(K)'' to 
``section 101(a)(15)(K)(i)'' in the first sentence in paragraph (k)(1);
    c. Adding the term ``K-1'' immediately before the word 
``beneficiary'' in the heading to paragraph (k)(2);
    d. Adding the term ``K-1'' immediately before the word 
``beneficiary'' or ``beneficiary's'' wherever those terms appear in 
paragraph (k)(2);
    e. Adding the term ``K-1'' immediately before the word 
``beneficiary'' in the second sentence in paragraph (k)(5);
    f. Removing and reserving paragraph (k)(6)(i);
    g. Revising the term ``K'' with ``K-1'' in paragraph (k)(6)(ii);
    h. Adding the term ``K-1'' before the term ``beneficiary'' in the 
first sentence in paragraph (k)(6)(ii);
    i. Adding paragraphs (k)(7) through (k)(11).
    The revisions and additions read as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (k) Spouses, Fiancees, and Fiances of United States Citizens. * * *
    (7) Eligibility, petition and supporting documents for K-3/K-4 
classification. To be classified as a K-3 spouse as defined in section 
101(a)(15)(k)(ii) of the Act, or the K-4 child of such alien defined in 
section 101(a)(15)(K)(iii) of the Act, the alien spouse must be the 
beneficiary of an immigrant visa petition filed by a U.S. citizen on 
Form I-130, Petition for Alien Relative, and the beneficiary of an 
approved petition for a K-3 nonimmigrant visa filed on Form I-129F. The 
petitions with supporting documents shall be filed by the petitioner 
with the director having administrative jurisdiction over the place 
where the petitioner is residing in the United States, or such other 
place as the Commissioner may designate.
    (8) Period of admission for K3/K-4 status. Aliens entering the 
United States

[[Page 42594]]

as a K-3 shall be admitted for a period of 2 years. Aliens entering the 
United States as a K-4 shall be admitted for a period of 2 years or 
until that alien's 21st birthday, whichever is shorter.
    (9) Employment authorization. An alien admitted to the United 
States as a nonimmigrant under section 101(a)(15)(K) of the Act shall 
be authorized to work incident to status for the period of authorized 
stay. K-1/K-2 aliens seeking work authorization must apply, with fee, 
to the Service for work authorization pursuant to Sec. 274a.12(a)(6) of 
this chapter. K-3/K-4 aliens must apply to the Service for a document 
evidencing employment authorization pursuant to Sec. 274a.12(a)(9) of 
this chapter. Employment authorization documents issued to K-3/K-4 
aliens may be renewed only upon a showing that the applicant has an 
application or petition awaiting approval, equivalent to the showing 
required for an extension of stay pursuant to Sec. 214.2(k)(10).
    (10) Extension of stay for K-3/K-4 status. (i) General.  A K-3/K-4 
alien may apply for extension of stay, on Form I-539, Application to 
Extend/Change Nonimmigrant Status, 120 days prior to the expiration of 
his or her authorized stay. Extensions for K-4 status must be filed 
concurrently with the alien's parent's K-3 status extension 
application. In addition, the citizen parent of a K-4 alien filing for 
extension of K status should file Form I-130 on their behalf. Extension 
will be granted in 2-year intervals upon a showing of eligibility 
pursuant to section 101(a)(15)(K)(ii) or (iii) of the Act. Aliens 
wishing to extend their period of stay as a K-3 or K-4 alien pursuant 
to Sec. 214.1(c)(2) must show that one of the following has been filed 
with the Service or the Department of State, as applicable, and is 
awaiting approval:
    (A) The Form I-130, Petition for Alien Relative, filed by the K-3's 
U.S. citizen spouse who filed the Form I-129F;
    (B) An application for an immigrant visa based on a Form I-130 
described in Sec. 214.2(K)(10)(i);
    (C) A Form I-485, Application for Adjustment to that of Permanent 
Residence, based on a Form I-130 described in Sec. 214.2(k)(10)(i);
    (ii) ``Good Cause'' showing. Aliens may file for an extension of 
stay as a K-3/K-4 nonimmigrant after a Form I-130 filed on their behalf 
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. The burden of establishing ``good cause'' rests solely 
with the applicant. Whether the applicant has shown ``good cause'' is a 
purely discretionary decision by the Service from which there is no 
appeal.
    (iii) Notice of intent to deny. When an adverse decision is 
proposed on the basis of evidence not submitted by the applicant, the 
Service shall notify the applicant of its intent to deny the 
application for extension of stay and the basis for the proposed 
denial. The applicant may inspect and rebut the evidence and will be 
granted a period of 30 days from the date of the notice in which to do 
so. All relevant material will be considered in making a final 
decision.
    (11) Termination of K-3/K-4 status. The status of an alien admitted 
to the United States as a K-3/K-4 under section 101(a)(15)(K)(ii) or 
(iii) of the Act, shall be automatically terminated 30 days following 
the occurrence of any of the following:
    (i) The denial or revocation of the Form I-130 filed on behalf of 
that alien;
    (ii) The denial or revocation of the immigrant visa application 
filed by that alien;
    (iii) The denial or revocation of the alien's application for 
adjustment of status to that of lawful permanent residence;
    (iv) The K-3 spouse's divorce from the U.S. citizen becomes final;
    (v) The marriage of an alien in K-4 status.
    (vi) The denial of any of these petitions or applications to a K-3 
also results in termination of a dependent K-4's status. For purposes 
of this section, there is no denial or revocation of a petition or 
application until the administrative appeal applicable to that 
application or petition has been exhausted.
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

    11. The authority citation for part 245 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; 8 CFR part 2.

    12. Section 245.1 is amended by revising paragraph (c)(6), and by 
adding a new paragraph (i), to read as follows:

Sec. 245.1  Eligibility.

* * * * *
    (c) * * *
    (6) Any alien admitted to the United States as a nonimmigrant 
defined in section 101(a)(15)(K) of the Act, unless:
    (i) In the case of a K-1 fiance(e) under section 101(a)(15)(K)(i) 
of the Act or the K-2 child of a fiance(e) under section 
101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of 
status based upon the marriage of the K-1 fiance(e) which was 
contracted within 90 days of entry with the United States citizen who 
filed a petition on behalf of the K-1 fiance(e) pursuant to 
Sec. 214.2(k) of this chapter;
    (ii) In the case of a K-3 spouse under section 101(a)(15)(K)(ii) of 
the Act or the K-4 child of a spouse under section 101(a)(15)(K)(iii) 
of the Act, the alien is applying for adjustment of status based upon 
the marriage of the K-3 spouse to the United States citizen who filed a 
petition on behalf of the K-3 spouse pursuant to Sec. 214.2(k) of this 
chapter;
* * * * *
    (i) Adjustment of status from K-3/K-4 status. An alien admitted to 
the United States as a K-3 under section 101(a)(15)(K)(ii) of the Act 
may apply for adjustment of status to that of a permanent resident 
pursuant to section 245 of the Act at any time following the approval 
of the Form I-130 petition filed on the alien's behalf, by the same 
citizen who petitioned for the alien's K-3 status. An alien admitted to 
the United States as a K-4 under section 101(a)(15)(K)(iii) of the Act 
may apply for adjustment of status to that of permanent residence 
pursuant to section 245 of the Act at any time following the approval 
of the Form I-130 petition filed on the alien's behalf, by the same 
citizen who petitioned for the alien's parent's K-3 status. Upon 
approval of the application, the director shall record his or her 
lawful admission for permanent residence in accordance with that 
section and subject to the conditions prescribed in section 216 of the 
Act. An alien admitted to the U.S. as a K-3/K-4 alien may not adjust to 
that of permanent resident status in any way other than as a spouse or 
child of the U.S. citizen who originally filed the petition for that 
alien's K-3/K-4 status.

    13. Section 245.2 is amended by adding a sentence at the end of 
paragraph (a)(4)(ii)(C), to read as follows:


Sec. 245.2  Application.

    (a) * * *
    (4) * * *
    (ii) * * *
    (C) * * * The travel outside of the United States by an applicant 
for adjustment of status, who is not under exclusion, deportation, or 
removal

[[Page 42595]]

proceeding and who is in lawful K-3 or K-4 status shall not be deemed 
an abandonment of the application if, upon returning to this country, 
the alien is in possession of a valid K-3 or K-4 visa and remains 
eligible for K-3 or K-4 status.
* * * * *

    14. Section 245.5 is amended by revising the second sentence to 
read as follows:


Sec. 245.5  Medical examination.

     * * * A medical examination shall not be required of an applicant 
for adjustment of status who entered the United States as a 
nonimmigrant spouse, fiance, or fiancee of a United States citizen or 
the child of such an alien as defined in section 101(a)(15)(K) of the 
Act and Sec. 214.2(k) of this chapter if the applicant was medically 
examined prior to, and as a condition of, the issuance of the 
nonimmigrant visa; provided that the medical examination must have 
occurred not more than 1 year prior the date of application for 
adjustment of status. * * *

PART 248--CHANGE OF NONIMMIGRANT STATUS

    15. The authority citation for part 248 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1184, 1187; 1258; 8 CFR part 2.

Sec. 248.1  [Amended]

    16. Section 248.1(a) is amended by:
    a. Revising the phrase ``his nonimmigrant'' to read ``his or her 
nonimmigrant'' wherever that term appears in the paragraph; and by
    b. Revising the phrase ``that of a fiancee'' or fiance to read 
``that of a spouse or fiance(e), or the child of such alien,''

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    17. The authority citation for part 274a is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

    18. Section 274a.12(a) is amended by:
    a. Revising paragraph (a) heading, and paragraph (a) introductory 
text;

    b. Revising paragraph (a)(6);
    c. Adding a new paragraph (a)(9).
    The revisions and additions read as follows:

Sec. 274a.12  Classes of aliens authorized to accept employment.

    (a) Aliens authorized incident to status. Pursuant to the statutory 
or regulatory reference cited, the following classes of aliens are 
authorized to be employed in the United States without restrictions as 
to location or type of employment as a condition of their admission or 
subsequent change to one of the indicated classes. Any alien who is 
within a class of aliens described in paragraphs (a)(3) through (a)(13) 
of this section, and who seeks to be employed in the United States, 
must apply with the Service for a document evidencing such employment 
authorization.
* * * * *
    (6) An alien admitted to the United States as a nonimmigrant fiance 
or fiancee pursuant to section 101(a)(15)(K)(i) of the Act, or an alien 
admitted as a child of such alien, for the period of admission in that 
status, as evidenced by an employment authorization document issued by 
the Service;
* * * * *
    (9) Any alien admitted as a nonimmigrant spouse pursuant to section 
101(a)(15)(K)(ii) of the Act, or an alien admitted as a child of such 
alien, for the period of admission in that status, as evidenced by an 
employment authorization document, with an expiration date issued by 
the Service;

* * * * *

    Dated: August 2, 2001.
Kevin D. Rooney,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-20302 Filed 8-13-01; 8:45 am]
BILLING CODE 4410-10-M


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