Sponsorship by US Citizen Spouse and K3 Visa

On 21 December 2000, the Legal Immigration and Family Equity Act (the “LIFE Act”) became law. The LIFE Act extended K visa benefits to the spouse and unmarried minor children of U.S. citizens. Thus, the K visa is now available to the spouse of U.S. citizens and their unmarried children under age 21 who are outside the United States awaiting processing of their green card petitions. Spouses of U.S. citizens are classified K-3 and their unmarried children under are classified K-4. Pursuant to INA §101(a)(15)(K)(ii), there are three requirements for an alien to receive this classification:

The principal alien must already be married to a United States citizen who has filed a family-based petition on his or her behalf; The same United States citizen spouse must be petitioning on the alien’s behalf to obtain a K nonimmigrant visa; and

The alien must be seeking to enter the United States to await the “availability of an immigrant visa.” The USCIS interprets this phrase to mean the approval of the adjustment of status application or application for an immigrant visa.

A petition must be filed on behalf of the principal alien, but the US petitioner is not required to file one on behalf of the alien’s children seeking K-4 nonimmigrant status, since K-4 aliens are dependent upon the K-3 for their status. Nonetheless, it is recommended that a petition be filed on behalf of any K-4 aliens in any event, since they will not be permitted to seek permanent residence until their petitions have been approved. K-4 aliens must be unmarried and under age 21 in order to continue to meet the definition of “child” under INA §101(b)(1).

The K petition must be approved by the USCIS. The K-3/K-4 alien must then obtain a visa prior to seeking admission to the United States. If the marriage took place abroad, the K visa must be issued at an immigrant visa issuing consular post located in the same foreign state where the marriage took place. An exception exists where no US consulate exists in that foreign state. In such cases, the visa must be issued at a consular post having jurisdiction to issue immigrant visas for aliens having the alien’s nationality.

The USCIS regulations state that aliens already in the United States under some other nonimmigrant category will not be permitted to change status to K-3 or K-4 while in the United States. However, there is nothing stopping the alien from applying for a K-3 or K-4 visa from abroad and reentering under that classification.

The USCIS regulations also state that K-3 and K-4 nonimmigrants may not change to any other nonimmigrant classification while in the United States. However, they are expected to seek permanent residence by adjustment of status or consular processing abroad. They may only do so as a result of a marriage to the original U.S. citizen petitioner who filed the petition on behalf of the K-3 or K-4 nonimmigrants.

Aliens appearing at ports of entry with a valid K-3 visa will be inspected and, if admissible, will be admitted for a period of two years. Similarly, K-4 dependents will be admitted for a period of two years or until the day before his or her 21st birthday, whichever is shorter.

Following the two-year admission period, a K-3 or K-4 nonimmigrant may apply to USCIS for an extension of stay in two-year increments. Since USCIS believes that the purpose of these classifications is to provide family reunification while the immigration process is ongoing, USCIS will require the alien seeking an extension of stay to have applied for adjustment of status or an application for an immigrant visa, unless the alien is still awaiting approval of the pending spousal petition or is able to provide USCIS with “good cause” why this has not been done. A spousal petition should be filed on behalf of the K-4 dependents at the earliest possible time.

The status of an alien who enters under K-3 or K-4 status will terminate 30 days following the denial of the family-based petition. If this occurs, the alien must leave the United States. For the purpose of termination of K status, the petition is denied when the applicable administrative appeal has been exhausted, or the period to appeal has expired.

In addition, a finding by USCIS that a fee or other consideration was given for the purpose of filing the family-based petition or the petition to obtain K nonimmigrant status for a spouse results in termination of K status and the alien being placed in deportation (“removal”) proceedings. This does not apply to a fee or other consideration paid to an attorney for assistance in preparation of a lawful petition.

Aliens admitted to the United States as K-3 or K-4 nonimmigrants are authorized to work incident to their status as are K-1 and K-2 nonimmigrants. However, like K-1 and K-2 nonimmigrants, K-3 and K-4 nonimmigrants must still obtain an employment authorization before commencing their employment.

Aliens classified as K-3 or K-4 who are seeking to renew their employment authorizations will be required to show that they are pursuing the immigration process. They will have to show that a spousal petition has been filed on their behalf and, if approved, that their application for an immigrant visa or their application for adjustment of status has been filed with USCIS or Department of State, as applicable.

Aliens present in the United States in K-3 or K-4 status may travel outside the United States and return using their K-3 or K-4 visas, even if they have filed for adjustment of status. USCIS will not presume that their departure constitutes abandonment of the adjustment application. This is different from the treatment of K-1 and K-2 nonimmigrant fiancees, who must obtain advance parole before departing the United States.

Conditional Status Where Marriage is Less Than Two Years Old

All K-1 fiance cases fall under provisions of the as the fiance(e)’s status results from a marriage that was entered into less than 24 months before permanent residence was acquired. K-3 spouse cases will also fall under these provisions if the marriage is less than 24 months old at the time that the alien spouse obtains permanent residence. Such individuals are given conditional permanent residence rather than full permanent residence. This conditional status also applies to K-2 and K-4 dependents.

The petitioner and the beneficiary must jointly file a petition to remove the condition within 90 days of the second anniversary of the alien obtaining condition permanent residence. If the petitioner and beneficiary fail to file the joint petition within the 90 day period, a waiver must be obtained in order to avoid a loss of permanent residence status. Waivers will be given only in limited circumstances. In either case, USCIS will have the opportunity to review the legitimacy of the marriage prior to removing or waiving the condition.

For additional information or to discuss the specifics of your case, please contact Ortega-Medina & Associates.