U.S. Citizen Sponsorship of a Foreign National Fiancé/e or Spouse16 Feb 2017
In the United States, Valentine’s Day often brings with it an increase in marriage proposals. U.S. immigration law has long-valued the idea of family unity. And, to that end, a U.S. citizen (USC) wishing to bring a foreign national fiancé/e or spouse to the United States has the option of petitioning for a K-1 or K-3 visa.
K-1 Visa for Fiancé/e of USC
The K-1 category allows a USC to sponsor a foreign national fiancé/e so that the couple can get married in the United States. A K-1 petition is filed by the USC with the U.S. Citizenship and Immigration Services (USCIS). If approved, the fiancé/e must apply for the K-1 visa at a U.S. embassy or consulate. Minor children of the foreign national fiancé/e can apply for K-2 visas in order to accompany the K-1 applicant to the U.S.
In applying for the visa, the foreign national must demonstrate a bona fide intention to marry the USC fiancé/e. The applicant also must be legally eligible to wed the USC; so, for instance, if either the USC or the foreign national was married previously and the divorce proceedings are not yet finalized, the visa is likely to be denied. But, assuming the applicant qualifies and the visa is issued, the foreign national may then enter the United States in K-1 status and will have 90 days in which to marry the USC petitioner. Once the couple marries, the foreign national can file an adjustment of status (I-485) application based on marriage to a USC.
K-3 Visa Available for Spouse of USC, But of Limited Use
The K-3 category provides a temporary option for a foreign national who is already married to a USC. In these situations, the normal immigrant visa process could mean that the couple will be separated for a substantial period of time. So, after filing an I-130 petition on behalf of the spouse, the USC can also file a K-3 petition. If approved, the foreign national can apply for a K-3 visa, allowing the spouse to enter the United States for up to two years. Similar to the K-2, minor children of the foreign national spouse can apply for the K-4 visa. Once admitted to the United States, the K-3 spouse (and K-4 children) can file applications to adjust status and remain in the U.S. while their cases are pending.
Unfortunately, the K-3 is not helpful in most cases. The I-130 must be filed before a K-3 petition can be submitted to the USCIS. The majority of the time, the I-130 is approved before adjudication of the K-3 petition. In those situations, the K-3 petition is automatically cancelled and the foreign national spouse must to wait to apply for an immigrant visa at the U.S. consulate. Therefore, the K-3 really is useful only as a back-up plan, in case the pending I-130 is delayed.
LPR Can Sponsor Spouse by Filing I-130 Petition
While a lawful permanent resident (LPR or “green card” holder”) cannot file a K-1 or K-3 petition on behalf of a fiancée/e, an LPR can file an I-130 petition on behalf of a spouse. This type of case is filed under the family-based, second preference A category, and the priority date is determined based on the date the I-130 petition is filed. More details on this process are available in the MurthyDotCom InfoArticle, Family-Based Immigration Simplified (26.Mar.2012).
Note that an I-130 petition is typically necessary only if the couple marries after the principal spouse becomes an LPR. If the marriage occurs prior to the issuance of the principal spouse’s green card, in most situations, a separate petition is not required.
Same-Sex Couples Eligible for K-1 and K-3 Benefits
Since the U.S. Supreme Court decision in U.S. v. Windsor, same-sex couples are treated the same as straight couples for purposes of requesting U.S. immigration benefits, including those allowed under the K-1 and K-3 categories. Further, although state laws related to marriage can sometimes impact the ability of foreign nationals to obtain K-1 or K-3 visas, this is not so for state marriage laws pertaining to the recognition of gay and lesbian marriages. To illustrate, a K-3 visa may be denied if an applicant is legally married to a first cousin, and the couple intends to reside in a state that prohibits such marriages. But, if a same-sex couple is legally married and they plan to reside in a state that refuses to recognize the marriage, this alone would not be a reason to deny the visa. More information on the Supreme Court’s decision in Windsor and its impact on immigration law is provided in the MurthyDotCom NewsBrief, Same-Sex Marriage Valid Based on Place of Marriage (29.Jul.2013).
While U.S. immigration law is far from perfect, the goal of promoting family unity, including through the K-1 and K-3 categories, is laudable. Couples in love, who have questions about building their lives together in the U.S., are welcome to consult with an attorney at the Murthy Law Firm.
Originally published 13.Feb.2014, this MurthyDotCom NewsBrief has been updated for our readers.
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