INS Issues K-3 Regulations – August 2001
Posted Aug 24, 2001

As regular readers of the MurthyBulletin are aware, the Legal Immigration Family Equity (“LIFE”) Act of 2000 established a new nonimmigrant category for spouses of U.S. citizens and their dependents. Previously, spouses of U.S. citizens and their children who were beneficiaries of pending or approved petitions could enter the U.S only with immigrant visas. The spouse of a U.S citizen, who was married abroad, had to obtain an immigrant visa outside the U.S. prior to admission. This meant that the waiting period was frequently as long as a year, while the INS processed the petition and the U.S. Department of State to issued the visa.

On August 14, 2001, INS finally published its interim regulation setting forth the requirements and procedures for the K-3 (for spouses of U.S. citizens) and K-4 (for children of such spouses). The interim rule became effective August 14, 2001, and INS will accept written comments up to October 15, 2001.

The LIFE Act addressed this issue of family separation by allowing such beneficiaries to enter as nonimmigrants initially and then to adjust to immigrant status while in the U.S. The LIFE Act expands the K visa category, previously available only to fiance/es of U.S. citizens, to include the spouses and children of U.S. citizens.

The U.S. Department of State (DOS) has been ready and willing to process these new visas, known as K-3 and K-4, at consulates and embassies around the world since early 2001, soon after LIFE was enacted. DOS has been unable to issue the K-3 or K-4 visas because of INS' delay in publishing its implementing regulations for the paperwork required under this new provision. Note that the K-1 category for fiance/es of U.S. citizens and the K-2 category for children of such fiance/es still exist.

Following is a brief overview of the new provisions.

Basic Eligibility Requirements for K-3 and K-4 Visas
 
There are three basic requirements for a foreign national to obtain the new nonimmigrant classification:

a. The person must be already married to a U.S. citizen who has filed a relative visa petition (Form I-130) on her/his behalf.

b. That same U.S. citizen spouse must be petitioning on that alien’s behalf to obtain a nonimmigrant visa.

c. The foreign national must be seeking to enter the United States to await the completion of Green Card processing.

d. For the K-4, the applicant must be the child, under 21 years of age, of a person who qualifies as a K-3.

Application Procedures for the K-3 and K-4 Nonimmigrant Visas

The U.S. citizen petitioner must have filed the I-130 petition, as indicated above. S/He must also file a petition, Form I-129F (same form as for fiance/es) in the U.S. for the purpose of obtaining nonimmigrant K status for his or her spouse. The INS has established a special Post Office box address in Chicago for accepting K-3 petitions. The INS approves the K-3 petition, and then arrangements are made for the person to be interviewed for the K-3 visa by the consular officer at the Embassy or Consulate abroad. As with fiance/e cases, the medical examination is done abroad.

For a child of the spouse, there is no requirement that the I-130 must have been filed, and there is no separate petition for the K-4. Rather the child would process for the K-4 visa together with her/his K-3 parent. However, it is generally possible and advisable to file the I-130 for the child also. If the I-130 is not filed for the child prior to admission as K-4, the I-130 would be filed as part of the completion of the child's Green Card process after arrival in the U.S., as described further below. K-4 applicants also must undergo medical examination abroad.

K-3 / K-4 Admissions to the U.S.

The spouse of the U.S. citizen must be in possession of the K-3 visa at the time of admission into the U.S. and that visa must be issued from the same foreign state in which the marriage took place (if outside the U.S.). Holders of valid K-3 visas will be inspected and, if admissible, will be admitted into the U.S. for a period of 2 years. Similarly, those with a valid K-4 visa will be admitted for a period of 2 years or until the day before the person’s 21^st birthday, whichever is shorter.

Ordinarily the K-3 or K-4 visa holder will apply for adjustment of status to permanent residence after arrival (see next section below). However, there may be special situations, such as if the I-130 is still pending at the Service Center. In such cases it will be possible to obtain extensions of the K-3 or K-4 status.

Please note that persons admitted as K-3 or K-4 will not be allowed to change to another nonimmigrant status. Rather, the purpose of the K-3 or K-4 is to provide a step toward the permanent status. K-3 and K-4 visa holders will be expected to go on to apply for the permanent resident status or "green card."

Completion of Green Card Procedure After Arrival

In order to become a permanent resident, the K-3 visa holder needs to apply for adjustment of status (I-485) at the local INS District Office (or with the Vermont Service Center if in Maryland). The K-4 child would need to have an I-130 filed by the U.S. citizen petitioner and file the I-485. Ordinarily, both of these items would be filed together.

Please note that, in order to obtain a K-4, the child does not have to be the child of the U.S. citizen, but rather needs to be the child of the K-3 visa holder. However, in a majority of cases, the K-4 will likely be the child of the U.S. citizen. In order for the K-4 child to become a permanent resident, the U.S. citizen must file the I-130 on her/his behalf. The U.S. citizen can file the I-130 for a biological child; for a stepchild if the marriage creating the step relationship occurred before the child's 18^th birthday; or (with certain restrictions) for an adopted child. For specific details on whether a particular child qualifies for immigration on this basis, we suggest a consultation with an attorney. If you do not have an attorney, you are free to contact The Law Office of Sheela Murthy, P.C.

Medical Examination

Since the medical examination would already have been done overseas, the applicant does not need to do the medical again, if filing I-485 within one year of the date the medical was performed. (Please note that there are some exceptions for people found to have certain medical conditions.) It is necessary, however, to submit the INS vaccination sheet.

Employment Authorization

The person can apply for work authorization as a K-3 or K-4 by sending a work authorization application form to the Chicago P.O. box address, or can apply for the work authorization as part of the I-485 package. It is possible to travel on the K-3 / K-4 visa, even after filing the I-485, or the person may apply for an advance parole document with the I-485.

As an alternative to the I-485, the K-3 or K-4 individual could consular process for an immigrant visa instead of filing the I-485. Since K-3 / K-4 visa holders are admitted for a two-year period, they are able to remain in the U.S. while awaiting their interview dates.

Termination of the K-3 or K-4 Status

If the underlying relative visa petition or the immigrant visa is denied, then the nonimmigrant K visa will terminate 30 days following such denial. If this occurs, the person is required to leave the U.S., according to the regulations. There is also a provision that any finding by the INS that a fee or other consideration was given to the petitioner 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.

Conditional Status of the K-3 / K-4 Visa Holders

Another provision states that all who adjust status to permanent resident from the K nonimmigrant classification, as a spouse, fiance/e or a minor child of either, are subject to the conditional residency requirements of section 216 of the Act, the same as in other marriage-based immigration cases. Also, a person in any K nonimmigrant classification, whether spouse, fiance/e or child of either, may only apply to adjust 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 in order to obtain that alien’s status, not on any other basis.

We hope that these details of the K-3 and K-4 regulations will help MurthyBulletin readers who are considering filing such petitions for your spouses. INS delays in processing the I-130 petition have necessitated the K-3 / K-4 visa process and we hope it will help to unite families much faster.