Immigration Through Marriage
If you are married to an American citizen or permanent resident, there are several types of visas by which immigration to the United States can occur. The K visa is a hybrid document because it is a nonimmigrant visa designed to facilitate the admission of intending immigrants. It includes the fiancé of the American citizen and the fiancé’s children under the age of twenty-one. In addition, the K visa includes spouses of American citizens and their unmarried children under the age of twenty-one. It allows an alien to enter the United States to apply for lawful, permanent residency status.
Under INA 101(a)(15)(K), an American citizen can immediately petition for his fiancée or her fiancé. To receive a K visa, the following requirements must be met:
The beneficiary alien must be a fiancée/fiancé of the American citizen;
The beneficiary fiancé and the American citizen fiancée must have previously met in person within two years of the date of filing the peition, unless a waiver is granted;
He must enter the United States solely to conclude a valid marriage with the American citizen;
He must marry the American citizen within ninety days after entry into the United States and apply for permanent residency;
Minor children can accompany the fiancé as K-2 visa holders.
An American citizen petitioner must file petition on Form I-129F under INA 214(d) and provide supporting documents, including color photographs of both the petitioner and beneficiary;
An American citizen petitioner must file Form G-325A for both the petitioner and the beneficiary;
The petitioner must file the petition at his place of residence;
The petitioner must provide proof that there is a bona fide intention to marry within ninety days of the fiancé’s entry to the United States; and
Both parties must demonstrate that there are no legal impediments to the marriage.
Upon approval, USCIS sends the petition to the appropriate consular post. The approved petition remains valid for four months from the date of USCIS’ action. The petition can be revalidated for four-month periods. Denial of a petition may be appealed to the Administrative Appeals Office. The petition is automatically terminated when a petitioner dies or withdraws it. An American consulate abroad issues the K visa based on evidence showing that an American citizen and his fiancée met within two years of filing of the petition.
The minor, unmarried children of a K-1 principal beneficiary who are listed in the petition may be accorded K-2 status if accompanying or joining the beneficiary after he arrives in the United States. Neither a separate petition nor filing fee is required. The cut-off date for issuance of a K-2 visa is one year from the date of issuance of the K-1 visa to the principal beneficiary. Thereafter, an immediate relative or second preference petition is required for the dependent.
K-3/K-4 Visas for Spouses of American Citizens and Children of Non-citizen Spouses
A K-3 visa is available to a person who is validly married to an American citizen and the American spouse has filed an I-130 petition on behalf of the spouse. An unmarried child of a K-3 visa holder does not need a separate I-130 petition. An application for a K-3 visa is filed on Form I-129F. If the K-3 visa holder was married abroad, he must apply for the K-3 visa in the country in which the marriage took place. An unmarried child of a K-3 applicant may immigrate to the United States as a K-4 visa holder. If a K-4 child is inadvertently left off Form I-129F, the consular officer will process a K-4 visa for the child. The petition for an alien fiancé must provide proof that the petitioner has previously filed a petition for alien relative on Form I-130.
The Visa Process for K Visa Beneficiaries
Upon receipt of the approved petition on Form I-129F from USCIS, the consulate will issue a letter to the beneficiary outlining the steps for his visa application. Since a K visa applicant seeks to enter the United States to apply subsequently for immigrant status, he must present the following documents to an American consulate:
Form OF-156 (in duplicate) and supplement (in single copy), which the consulate sends to the applicant upon receipt of the approved petition;
Evidence of termination of prior marriages (even if such evidence was provided as part of the underlying petition);
Police certificates, if available, from the beneficiary’s present place of residence and any place in which he has resided for six months or more from the age of 16;
Form OF-157, Medical Examination Record; and
Evidence of available financial resources to demonstrate that the beneficiary will not become a public charge in the United States.
Once the documents are submitted, the consular officer begins clearance procedures, requesting priority handling and a response within thirty days. Upon completion of the security clearances, the consular officer will interview the applicant to determine eligibility as if the beneficiary were applying for an immigrant visa as an immediate relative. If the consular officer finds the beneficiary to be eligible, he will issue a K visa, valid for six months and a single entry without charge or requiring fingerprints. He will seal the documents in an envelope and give them to the beneficiary to present at the port of entry to the United States
Consular Processing IssuesIf the consular officer finds that the applicant’s marital history is inconsistent with the statements in the petition or that the children of the beneficiary were not named in the petition, he is required by law to suspend action and return the petition to the NVC with a memorandum of findings for reconsideration. When the beneficiary is pregnant and this condition is not disclosed on the petition, the consular officer should confirm that petitioner is aware of pregnancy and solicit petitioner’s desire to proceed with the case. When multiple petitions are received for the same beneficiary, the consular officer is to suspend action and return the petitions to the NVC, which will then transfer them with a memorandum of findings to USCIS for reconsideration. USCIS will interview each of the parties, and, if no one wishes to withdraw the petition, then the burden falls to the officer to enter an appropriate order. In addition, the consular officer may deny the petition based on grounds of inadmissibility. If no waiver is available, then the visa will be refused to the applicant. If a waiver is available, however, then the consular officer will return the petition to USCIS for reconsideration.
Admission to the United States and Adjustment of Status
K-1 visa holders are admitted to the United States with a single entry visa for ninety days to marry the petitioner. USCIS may authorize employment during this period. K visa holders are ineligible for an extension of stay or change of status. Upon marriage to the petitioner within ninety days, a K-1 fiancé must apply for adjustment of status. If the marriage does not occur, then the K visa holder must leave the United States. The adjustment of status from a K-2 to a lawful permanent resident is particularly helpful in the situation in which an American citizen marries a K-1 fiancé after the fiancé’s K-2 child turns eighteen. The K-2 child may file his adjustment of status application without a petition for alien relative effectuated on Form I-130. USCIS, however, must approve his adjustment of status on Form I-485 before the child turns twenty-one to avoid aging out problems. The Child Status Protection Act (“CSPA”) does not help the K-2 child in this situation since the CSPA does not apply to K-2 visa holders. The only remedy is to request USCIS to put the processing on a fast track to avoid age-out problems.
K-1 Non-immigrant Visa
A K-1 visa holder cannot change or adjust his status under INA 248 except through marriage to the K-1 petitioner under INA 245(d). Pursuant to the Immigration Marriage Fraud Amendments Act, K-1 and K-2 visa holders are granted conditional residency status for two years. The conditions of residency must be lifted on the second anniversary of the granting of conditional residency as discussed below.
K-3 and K-4 Visas
The K-3 and K-4 visa holders are admitted to the United States for two years, and their visas may be renewed for two-year periods as long as the American spouse has not received an approval of the petition for alien relative on Form I-130, or the K-3 visa holder filed for an immigrant visa or adjustment of status; and he has not yet received an approval.
A K-3 visa may be terminated within thirty days of the following events:
1. the denial or revocation of a petition for alien relative on Form I-130;
2. the denial or revocation of the adjustment of status application on Form I-485;
3. the divorce between the K-3 visa holder and his American spouse; or
4. the marriage of a K-4 visa holder.
Similarly to K-1 and K-2 visa holders, the K-3 and K-4 visa holders can neither change their status in the United States nor adjust their status on any other basis except by marriage to the same American citizen who petitioned for the K-3 visa applicant. K-3 and K-4 visa holders are allowed to work in the United States, but they must apply for employment authorization on Form I-765. Further, K-3 and K-4 visa holders can travel outside the United States without obtaining advance parole. If the marriage is less than two years old at the time of entry to the United States or adjustment of status, under INA 216, Immigration Fraud Amendments of 1986, a K-3 spouse will receive conditional residency.