K Visas - Marriage of a United States Citizen to a Foreign National
In a world that is becoming smaller through technological advances on a daily basis, the frequency of marriages between nationals of different countries has significantly increased. Although not perfect, the United States has an immigration system which is designed to enable the marriage of U.S. citizens to nationals of foreign countries through the K visa program. The Immigration and Nationality Act of 1952 created the K-1 visa for fiancé(e)s of U.S. citizens and their unmarried children under the age of 21 (K-2). In 2000, the Legal Immigration and Family Equity Act, commonly known as the LIFE Act, amended the K visa program to also allow a spouse of a U.S. citizen, and that spouse’s children under the age of 21, to obtain a K-3/K-4 visa.
The K-1 visa was created for the U.S. citizen who desired to marry a foreign national, with the U.S. citizen being the Petitioner and the foreign national fiancé(e) the Beneficiary. In order for a K-1 visa to be issued to the Beneficiary, the Petitioner must first obtain an approved Form I-129F petition from the U.S. Citizenship and Immigration Service (“USCIS”). To obtain an approved Form I-129F, the Petitioner must prove that: (1) the Petitioner and Beneficiary have met in person within the two years immediately preceding the filing of the petition; and (2) the Petitioner and Beneficiary are legally able to marry within 90 days of the beneficiary entering the United States.
Once USCIS approves the Form I-129F, the designated Consulate where the Beneficiary intends to apply for his/her visa will be notified. Each Consulate’s policy and procedures differ, and processing times can fluctuate based on factors such as location, time of year, and staffing at the Consulate. However, the final step of the process is for a Consular Officer to interview the Beneficiary in order to make a final determination of the Beneficiary’s eligibility for the K visa.
Once the Consulate issues the Beneficiary a K visa and the Beneficiary enters the U.S., the Petitioner and Beneficiary must marry within 90 days of the Beneficiary’s entry to the United States. Further, the K-1 visa issued by the Consulate is only valid for a single entry. Once married, the Beneficiary must then apply for Adjustment of Status in order to become a lawful permanent resident of the United States.
The purpose for providing K-3/K-4 visa is to allow families to be together while awaiting the adjudication of the foreign national spouse’s visa petition. As such, a K-3 visa will only be issued if an immigrant visa is unavailable to the Beneficiary.
In order to qualify for the K-3 visa, the Beneficiary must already be married to a U.S. citizen, and the Petitioner must have already filed an I-130 Immigrant Visa petition on behalf of the Beneficiary. Once the I-130 is filed, the Petitioner must then file, and have approved, an I-129F petition on behalf of the Beneficiary spouse.
A K-3 visa beneficiary should be granted a two year period of admission upon entry to the United States. If the Beneficiary can show that they are taking steps to progress their immigrant visa process, they can file an extension of their K-3 status by submitting a form I-539 no more than 120 days before their status expires. K-3 and K-4 visas issued by the Consulate allow for multiple entries into the United States and can be valid for up to 10 years.
Similar to the K-1/K-2 visa status, once in the United States the K-3/K-4 Beneficiary can obtain work authorization from USCIS for the duration of their K status. The work authorization can be extended if the Beneficiary can show that their application or petition is awaiting approval.
If you are not currently married, the major factor that will determine whether a K-1 or K-3 visa is best for you is where you want to get married; abroad or in the U.S.? Clearly, the decision of where to get married is a personal decision for each couple and takes into account various factors. If you plan on getting married outside the U.S. it would most likely be more advantageous to pursue a K-3 visa. However, if you plane on getting married in the U.S., it generally makes more sense to pursue the K-1 visa.
If you have questions regarding this process, contact Udall, Shumway & Lyons PLC at (480) 461-5302 or mlw@udallshumway.com.
Disclaimer/Reminder
The information provided herein is for informational purposes only and does not constitute legal advice. Udall, Shumway & Lyons PLC strongly recommends that individuals with immigration related matters retain the services of competent immigration counsel, such as Udall, Shumway & Lyons PLC, as general information of this nature can never replace informed counsel when specific immigration-related guidance is needed. Udall, Shumway & Lyons PLC in no way intends to create an attorney-client relationship with any individual who may read this document by simply providing this information.
K-1 (Fiancé(e) Visa)
The K-1 visa was created for the U.S. citizen who desired to marry a foreign national, with the U.S. citizen being the Petitioner and the foreign national fiancé(e) the Beneficiary. In order for a K-1 visa to be issued to the Beneficiary, the Petitioner must first obtain an approved Form I-129F petition from the U.S. Citizenship and Immigration Service (“USCIS”). To obtain an approved Form I-129F, the Petitioner must prove that: (1) the Petitioner and Beneficiary have met in person within the two years immediately preceding the filing of the petition; and (2) the Petitioner and Beneficiary are legally able to marry within 90 days of the beneficiary entering the United States.
Once USCIS approves the Form I-129F, the designated Consulate where the Beneficiary intends to apply for his/her visa will be notified. Each Consulate’s policy and procedures differ, and processing times can fluctuate based on factors such as location, time of year, and staffing at the Consulate. However, the final step of the process is for a Consular Officer to interview the Beneficiary in order to make a final determination of the Beneficiary’s eligibility for the K visa.
Once the Consulate issues the Beneficiary a K visa and the Beneficiary enters the U.S., the Petitioner and Beneficiary must marry within 90 days of the Beneficiary’s entry to the United States. Further, the K-1 visa issued by the Consulate is only valid for a single entry. Once married, the Beneficiary must then apply for Adjustment of Status in order to become a lawful permanent resident of the United States.
K-3 (Spouse Visa)
The purpose for providing K-3/K-4 visa is to allow families to be together while awaiting the adjudication of the foreign national spouse’s visa petition. As such, a K-3 visa will only be issued if an immigrant visa is unavailable to the Beneficiary.
In order to qualify for the K-3 visa, the Beneficiary must already be married to a U.S. citizen, and the Petitioner must have already filed an I-130 Immigrant Visa petition on behalf of the Beneficiary. Once the I-130 is filed, the Petitioner must then file, and have approved, an I-129F petition on behalf of the Beneficiary spouse.
A K-3 visa beneficiary should be granted a two year period of admission upon entry to the United States. If the Beneficiary can show that they are taking steps to progress their immigrant visa process, they can file an extension of their K-3 status by submitting a form I-539 no more than 120 days before their status expires. K-3 and K-4 visas issued by the Consulate allow for multiple entries into the United States and can be valid for up to 10 years.
Similar to the K-1/K-2 visa status, once in the United States the K-3/K-4 Beneficiary can obtain work authorization from USCIS for the duration of their K status. The work authorization can be extended if the Beneficiary can show that their application or petition is awaiting approval.
Which Visa is best for you?
If you are not currently married, the major factor that will determine whether a K-1 or K-3 visa is best for you is where you want to get married; abroad or in the U.S.? Clearly, the decision of where to get married is a personal decision for each couple and takes into account various factors. If you plan on getting married outside the U.S. it would most likely be more advantageous to pursue a K-3 visa. However, if you plane on getting married in the U.S., it generally makes more sense to pursue the K-1 visa.
If you have questions regarding this process, contact Udall, Shumway & Lyons PLC at (480) 461-5302 or mlw@udallshumway.com.
Disclaimer/Reminder
The information provided herein is for informational purposes only and does not constitute legal advice. Udall, Shumway & Lyons PLC strongly recommends that individuals with immigration related matters retain the services of competent immigration counsel, such as Udall, Shumway & Lyons PLC, as general information of this nature can never replace informed counsel when specific immigration-related guidance is needed. Udall, Shumway & Lyons PLC in no way intends to create an attorney-client relationship with any individual who may read this document by simply providing this information.