Alex Halow Immigration Attorney — www.k1fianceevisas.com
Member of AILA, American Immigration Lawyers Association

K3 / K-3 Spouse Visa Resources

This portion of www.k1fianceevisas.com is dedicated to the K3 marriage and/or spouse visa. The K3 visa was created in 2000 to address processing backlogs at U.S. Citizenship and Immigration Services ("USCIS") service centers regarding family-based immigration visas. On this portion of this web site, you will find information about the K3 visa as well as how you can contact me to represent you in your K3 visa case.

If you already know all about the K3 visa and are interested in retaining professional help with your K3 visa case, click here to read about my fees. If you are still exploring the K3 visa, please keep reading.

What is the K3 visa and who is eligible?

The K3 visa is specifically intended for use by U.S. citizens who are sponsoring their foreign national spouse for immigration. As mentioned above, it was created in the year 2000 to address long processing times for immigration visas at the USCIS. The K3 visa is therefore actually a "non-immigrant" visa, meaning that receipt of a K3 visa does not result in the spouse becoming a legal permanent resident immediately upon their arrival in the U.S. However, the K3 visa does allow the spouse to travel to the U.S. and live with their U.S. citizen spouse while they are waiting for their I-130 immediate relative immigration petition to process through. They can also bring their unmarried children who are under 21 along using the related "K4" visa (however, please note that ordinarily it will be necessary for the U.S. citizen to file separate I-130 petitions for those minor children at some point in order for them to become legal permanent residents).

Although processing changes made by the USCIS in the Fall of 2004 helped reduce I-130 Petition processing times for spouses of U.S. citizens throughout 2005, I-130 Petition processing backlogs seem to be making a comeback. Although in some cases it is possible that an applicant's I-130 Petition may end up being approved before their K3 visa petition, it makes sense to file both if the most important thing is to have your spouse here as quickly as possible.

The basic eligibility requirements for the K3 visa are as follows:

• The sponsoring husband or wife must be a U.S. citizen, and the beneficiary must be their spouse;
• There must be a pending I-130 immigration petition naming the foreign spouse as a beneficiary already on file with the USCIS;
• The marriage between the U.S. citizen and foreign spouse must be valid, meaning that they have met all requirements to have a valid marriage in the country/jurisdiction where they married, and were not subject to any impediment (such as an unterminated prior marriage) to their ability to marry at that time.

After obtaining a K3 visa, the foreign spouse (and their unmarried minor children, using the K4 visa) can travel to the U.S. and live with their spouse for up to 2 years. Presumably, during that time the USCIS will approve the immigration petition filed by the U.S. sponsor and/or the spouse will be able to apply for adjustment of status to become a legal permanent resident.

Effect of "IMBRA" on K3 visa applications:

The International Marriage Broker Regulation Act ("IMBRA") took effect on March 6, 2006. IMBRA is intended to address perceived problems with the use of K1 or K3 visas by petitioners who have a history of domestic or serious criminal violence in their past, and with petitioners who file multiple K1 petitions. IMBRA affects K3 visa petitioners by requiring them to disclose any past history of domestic violence or serious criminal violence. Whether IMBRA will affect your particular case is an important issue, and one that I will analyze at the outset of your case if you retain me to represent you.

Overview of the K3 visa application process:

The process for applying for a K3 visa is significantly more complicated than the process of applying for a K1 visa. The first step is to file an immigration petition for the foreign spouse. This will involve gathering substantial amounts of information about both the foreign spouse and the U.S. citizen spouse. Although it is not technically required for the spouse's children to receive a K4 visa, it is best to go ahead and file immigration petitions for them as well. If the children are not biologically the children of the U.S. citizen spouse, then it is necessary to analyze the facts of the marriage to ensure that the U.S. spouse can successfully sponsor them for immigration. In most cases, this will be possible, but the rules in this area can be complex.

The immigration petition should be filed with one of the four (4) USCIS regional service centers responsible for processing such petitions: the Vermont Service Center; the California Service Center; the Nebraska Service Center; or the Texas Service Center. Which service center you should file the immigration petition with depends on the state where you live.

After you receive a formal USCIS receipt or equivalent proof that you have filed the immigration petition, you can then file a K3 visa petition with the USCIS' National Benefits Center ("NBC"). Unlike other immigration petitions (including K1 visa petitions), the National Benefits Center processes all K3 visa applications in the United States, so your K3 visa petition will go there regardless of where you live in the United States. As of December 2006, this is still true even though USCIS recently announced that its National Benefits Center will be forwarding K3 visa petitions to either USCIS's California or Vermont Service Centers for processing depending on where the petitioner lives in the U.S. It is unclear whether USCIS will be changing its filing instructions for K3 visa applications in the future.

After USCIS finishes processing your K3 visa petition, USCIS will forward it to the National Visa Center ("NVC"). The NVC will conduct security checks regarding your spouse, and may collect some of the documents related to your case. It will then forward your case on to the relevant consulate. Your spouse (and their/your minor children) will have to attend a visa interview at that consulate (technically, you do not have to attend the interview, although it is best if you do). At the consular interview, the interviewing officer usually will focus on verifying the bona fide nature of your relationship with your spouse and on your ability to support your spouse and their/your children if they are admitted to the United States. However, other issues can arise if your spouse has ever had any immigration issues in the United States or if they have any kind of criminal history.

Once your spouse has been granted a K3 visa, they will be able to come live with you in the United States. Because the K3 is a "multiple entry" visa, they can travel using their K3 visa, and they can obtain permission to work with their K3 visa. However, if possible, once they arrive you should ordinarily pursue an adjustment of status application based on their pending immigration petition as soon as possible in order to help ensure that they become a legal permanent resident (or at least have an application to become a legal permanent resident pending) before their K3 visa expires. It is also possible (and probably best) to secure permission for them to work related to their adjustment of status application, rather than simply relying on their K3 visa. Similar considerations apply for your spouse's/your minor children if they come to the U.S. on a K4 visa.

K3 Visa Processing Times:

You can check on the current processing times for K3 visas by clicking on the "Processing Times" link on the left-hand side of this web page.

K3 / K-3 Visa vs. the K1 / K-1 Visa:

A question I get asked regularly is whether the K3 or the K1 visa is the best option for a couple that is not yet married. The general form of the question is whether a U.S. fiancee should apply for a K1 fiancee visa, or marry the foreign fiancee abroad and use the K3 spouse visa process.

Every case is unique, so it is not possible to provide a blanket answer that would apply in every situation. This particularly true under the new "IMBRA" law. However, as a general matter, my personal approach is that those who are not yet married should ordinarily use the K1 visa, leaving the K3 for use by those who are already married.

The main reason people who are K1 eligible consider the K3 process is that they believe the K3 visa will process more quickly. Even if USCIS happens to be processing K3 visas faster than your regional USCIS service center is processing K1 visa petitions at a given time, any apparent advantage in K3 visa processing times is usually deceptive. In theory, a U.S. fiancee can start a K1 visa petition immediately, provided they have all of the necessary documentation. To even start the K3 petition, they would have to get married outside the U.S. Unless the U.S. citizen is prepared to take that step and already has made travel plans, it could easily be several months before they will be able to start the K3 process, and the delay could more than wipe out any K3 visa processing time advantage.

In addition, before you can file a K3 visa application, you will need to be able to show that you filed an immigration petition with the USCIS service center that serves your region. This can easily add several weeks onto the process, while you wait for an official USCIS receipt or equivalent proof that you have filed the immigration petition to arrive.

Finally, the processing times at various service centers are not static: they can change greatly over time. It is entirely possible that, by the time you start your K3 visa application, either the service center that would have processed your K1 petition will have reduced its backlog, or USCIS will have fallen further behind in processing K3 applications (this seems especially likely if a lot of people decide to use the K3 process when they could have used the K1 process).

For all of these reasons, it is usually better for those who are K1 eligible to stick to the K1 process, and leave K3 visas to those who are already married. However, as noted above, every case is unique. If you hire me to represent you, I will analyze which method is actually best for you and advise you accordingly.

The information on this web site regarding immigration, K1 fiancee visas, and K3 spouse visas is general, and cannot be substituted for legal advice.