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The K3/K4 Process General Outline

 

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On December 21, 2000 the Legal Immigration and Family Equity Act (LIFE Act) was signed into law. One of the provisions of this legislation is the creation of K3 and K4 non-immigrant visas for spouses of US Citizens who are outside the US, and the children of those foreign spouses. These visas were created to allow reunification of families of US Citizens, by allowing the spouse and children to enter the United States as non-immigrants, and filing for Adjustment of Status inside the United States, rather than waiting for Consular immigrant visa processing. Provisions for processing for the K3/K4 became effective on August 14, 2001 after coordination required between BCIS (INS) and the State Department.

The best government sources for information about the K3/K4 are through the BCIS (INS) website, the Federal Register publication of August 14, 2001

Whereas the K1/K2 visa process is fairly straightforward, the K3/K4 is not as simple. It is important for the US Citizen to be informed and attentive to detail, because there are several opportunities to make mistakes and omissions which could result in unpleasant surprises. Immigrating to the United States via the K3/K4 is not such an automatic process as is experienced by the K1/K2.

 

Briefly, the K3/K4 process is as follows:

 

• The US Citizen files an I-130 petition for the foreign spouse.
• BCIS (INS) issues a receipt (I-797) acknowleging filing of the I-130 petition.
• The US Citizen files an I-129F petition, using the I-797 receipt as "proof of filing an immigrant petition". All children of the foreign spouse will be listed on this petition. The I-129F is sent to a special Service Center in Chicago. At this point, the "track" of the K3/K4 process becomes similar to the current processing for K1/K2 fiance(e) visa.
• When the petition is approved, the appropriate Consulate is notified and processing for the K3/K4 non-immigrant visa is begun, including medical, police check, I-134 affidavit of support, and Consular interview. The fee will be the same as the current K1 fiance(e) visa.
• The K3 visa is issued to the spouse, the K4 to the minor children, they go to the United States.
• The K3 spouse and K4 children file the I-485 for Adjustment of Status, either immediately or when the I-130 petition is approved. The new K visa will be issued for an effective period of 2 years, with multiple entries permitted, and provision to extend the visa beyond 2 years. The State Department has indicated that in K3/K4 cases, that the BCIS (INS) will retain the approved I-130 petition. This means if he K3/K4 visa holder wishes to obtain an immigrant visa at a Consulate, they need to notify that Consulate to begin the process, after which the Consulate will request the approved I-130 petition from the BCIS (INS). The BCIS (INS) seems to expect that most K3/K4 folks will apply for AOS from inside the United States, but due to long processing times at some local offices, it is very possible some folks will opt for Consular processing after they arrive in the United States.

The K visa for spouses *may* provide a major benefit for older stepchildren. Until now, a US Citizen would file an I-130 for the foreign spouse, and separate I-130 petitions for each child or step-child. Stepchildren would only be eligible if the marriage took place before the stepchilds 18th birthday. The revised I-129F will automatically include all children under 21, with no separate petition required, removing a major disparity between current K1/K2 and spousal immigrant visa processes. However, altho a separate I-130 petition is not required for the children to obtain a K4 visa, an approved I-130 petition is required before they may be approved for Adjustment of Status to permanent resident. The I-130 petition still states the U.S. Citizen petitioner may not file for a stepchild, unless the marriage took place before the stepchilds 18th birthday. This detail must be addressed, in order to prevent an older stepchild from moving here on a K4 visa, yet being denied approval of the I-130 petition.

 

The K3/K4 visa may allow the spouse and children into the US faster, they may now undergo the Adjustment process in the US, rather than entering the US with Permanent Resident status. This means filing for Adjustment of Status and work authorization, and paying the fees associated with these applications. It may mean problems with non-resident tuition fees at colleges, and other minor and major headaches experienced by current fiance(e) visa holders, including the sometimes nerve-racking experience of getting an older child adjusted to Permanent Resident status before turning 21.

The "basis" for Adjustment is the same as for current K1/K2 visa holders, who cannot change status to anything except Permanent Resident based on marriage to the original US petitioner. In other words, the spousal K visa holder will still need to be married to the US Citizen spouse (who filed the I-129F) at the time of the Adjustment interview.

 

The new K visa procedures allow the US Citizen and foreign spouse to bypass long I-130 petition approval times, and visa/affidavit of support processing steps at the National Visa Center, but will not decrease the time required to process and issue the new K3/K4 visa at the US Consulate.

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Updated February 22, 2006

Quick Links to each chapter:

 

• Introduction / References and Links
  
• The K1/K2 Process General Outline
  
• The I-129F Petition completed by the US Citizen
  
• The K1 Application Process completed by the Fiance(e)
  
• Entering the United States
  
• After Marriage - Adjustment of Status
  
• Lifting of Conditional Status
  
• Naturalization
  
• The K3/K4 Process General Outline
  
• The I-130 Petition (for K3/K4)
  
• The I-129F Petition (for K3/K4)
  
• The K3/K4 Application (at the Consulate)
  
• Entering the United States with the K3/K4 Visa
  
• Adjustment of Status from K3/K4
  
• Related Issues

Appendix...(Definitions of terms, form numbers, abbreviations)

Additional assistance is available at www.visaking.com or www.olvis.com.

 

CALL US TOLL FREE FOR FURTHER INFORMATION OR QUESTIONS AT 1-877-226-6751

 

 

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