How Can A U.S. Citizen Sponsor A Nonimmigrant Visa For A Fiancé Or A Spouse?

Steven Tuan Pham, Esq.

K-1 fiancé and K-3 Spousal nonimmigrant visas will allow the U.S. citizen's (U.S.C) fiancé and spouse to enter the United States as non-immigrants. The purpose for the K-1 visa is to allow the foreign fiancé to enter the United States to marry the U.S.C. The purpose for the K-3 visa is to allow the foreign spouse to unite with the U.S citizen while waiting for her permanent residency, which is dependent on the visa availability for the home country, which could take several months and sometimes years to be current.

What are the requirements for K-1 and K-3 nonimmigrant visas?

For a K-1 nonimmigrant visa for a fiancé of a U.S. citizen, the U.S. citizen must first file K visa petition with the USCIS on behalf of the foreign fiancé and have it approved before the alien fiancé may apply for a K visa. Both the U.S. citizen and the fiancé must remain unmarried until the arrival of the alien fiancé in the U.S. The alien fiancé and U.S. citizen must have met personally at least once in the two years before the K-1 petition was filed.

For a K-3 nonimmigrant visa for spouses of a U.S. citizen, the U.S. citizen spouse must file an immigrant petition for the benefit of the foreign spouse in conjunction with the K visa petition. The U.S. citizen spouse must file an I-129F petition (K visa petition) with the USCIS and have it approved; If the marriage occurred outside the U.S., the K visa must be issued by the U.S. consulate in the country where the marriage occurred.

Children of U.S. Citizens' Fiancés (K-2) and Children of U.S. Citizens' Spouses (K-4) can accompany K-1/K-3 visa applicant or holder to come to the U.S. The child must be unmarried and under 21 years old.

What are the procedures for filing a K-1 visa?

To file a K-1 visa for a fiancé, the U.S. citizen must file an application with the USCIS. Once the I-129F is approved, the USCIS will notify the American Consulate abroad specified on the petition. The alien fiancé submits a DS-156 non-immigrant visa application with a completed I-693 medical examination form and other requested documents to the U.S. consulate for the issuance of the K visa. Normally, an interview will be conducted at the U.S. consulate before the K visa is issued.

The U.S. citizen spouse has the option to file an immigrant visa for the alien spouse or to file a nonimmigrant K-3 visa. An immigrant petition for an alien relative will allow the alien spouse to receive a permanent residence card (green card) after 3 weeks of arriving in the U.S. The draw back on that is that the person must wait in the home country from 1 to 2 years from the date of filing to get the immigrant visa. However, if a nonimmigrant K-3 visa is filed, the alien spouse can come to the U.S. and receive a conditional green card for the initial two years. Once the immigrant petition is approved, the alien can obtain a permanent green card.

To file a K-3 visa for a U.S. citizen must have filed an immigration petition with the USCIS on behalf of his/her alien spouse. The U.S. citizen must also file a nonimmigrant petition for the alien spouse with the USCIS concurrently in filing the immigrant petition. Once the nonimmigrant petition is approved, the USCIS will notify the American Consulate abroad specified on the petition. The alien spouse submits a DS-156 non-immigrant visa application with a completed I-693 medical examination form and other requested documents to the U.S. consulate for the issuance of the K visa. Normally, an interview will be conducted at the U.S. consulate before the K visa is issued.

How should the K visa holder maintain his/her status?

After an alien fiancé has obtained a K-1 visa and entered the U.S., he/she must get married to the U.S. citizen who petitioned for him/her within 90 days of admission. After marriage, the alien fiancé becomes the spouse. S/he may file an immigration petition and adjustment of status application or immigrant visa application to become a permanent resident.

The spouse of a U.S. citizen admitted with a K-3 visa is authorized to remain in the U.S. for a period of 2 years specified on his/her Form I-94. S/he may file the immigration petition and adjustment of status application or immigrant visa application to become a permanent resident. The minor children of K-1 or K-3 visa holders will be admitted for a period of time the same as that of their parents or until the day before such children's 21st birthday or marriage, whichever is shorter.

An alien admitted to the U.S. as a K nonimmigrant will be authorized to work after filing an I-765 application with the USCIS. This must be maintained until the alien received a green card (conditional or unconditional green card).

Can a K visa holder travels outside of the U.S?

K-3/K-4 holders may travel outside of the U.S. and return using their nonimmigrant K-3/K-4 visa (if it is still valid) for a short trip, even if they have filed for adjustment of status in the U.S. prior to departure. On the contrary, the K-1/K-2 holders may enter the U.S. only one time with their K-1/K-2 visas. If they leave the U.S. before marriage, they need to apply for a new visa to come back. After they file the adjustment of status application, they are required to obtain advance parole before the trip abroad in order to avoid abandonment of the adjustment application.

When does a K visa terminated?

The K-1/K-2 status will be terminated when the alien fiancé marries someone other than the U.S. citizen who petitioned for her/him. And K-1/K-2 non-immigrants are required to leave the U.S. if the anticipated marriage does not take place within 90 days.

Besides the 2-year limit for the status, K-3/K-4 nonimmigrant status will be terminated 30 days after the denial of one of the following:

• The I-130 petition filed on the alien's behalf by the citizen petitioner;
• An application for an immigrant visa by the alien;
• The alien's I-485 adjustment of status application; and
• K-2 and K-4 status will also be terminated when the alien turns 21 years of age or is married.

If you need qualified legal assistance in obtaining a non-immigrant visa, contact the Houston Immigration Attorneys at Smith & Garg today! We are Immigration Attorneys Who Make Connections!