Alex Halow Immigration Attorney — www.k1fianceevisas.com

Immigration for Spouses and Step-Children of U.S. Citizens

This portion of www.k1fianceevisas.com is dedicated to spousal immigration and the K3 visa. Spouses (and in many cases, the minor step-children) of U.S. citizens can immigrate to the U.S. as "immediate relatives" of the U.S. citizen based on an approved I-130 petition. The K3 visa is a special visa available to spouses of U.S. citizens that was created in 2000 to address the long processing backlogs at U.S. Citizenship and Immigration Services ("USCIS") service centers regarding family-based immigration visas that existed at that time. Step-children of U.S. citizens are usually eligible for K4 visas as part of the K3 visa case.

As explained below, due to processing changes made by the USCIS in 2004 that drastically reduced USCIS' processing backlogs for family-based immigration for immediate relatives of U.S. citizens, most spouses and stepchildren now come to the U.S. based on approved I-130 petitions. K3 visas nonetheless remain a useful alternative, worth pursuing as a "back up" plan in case there are any problems with or changes to the way USCIS processes I-130 petitions in the future.

How Can My Spouse Immigrate to the U.S.?

U.S. citizens can sponsor their spouses for immigration to the U.S. by filing an I-130 petition for them.

The basic eligibility requirements for filing an I-130 petition for a spouse are:

• The sponsoring husband or wife must be a U.S. citizen, and the beneficiary must be their spouse;
• 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;
• The marriage between the U.S. citizen and foreign spouse must be "bona fide," meaning that their relationship is a real one based on love and affection, and that they did not marry in order to circumvent U.S. immigration laws.

If the foreign spouse has any children from a prior relationship, the U.S. citizen can normally sponsor them as step-children, provided the marriage between the U.S. citizen and the foreign spouse happened before the child in question turned eighteen years old. However, the U.S. citizen will have to file a separate I-130 petition for each step-child.

After the I-130 petition (or petitions, if there are step-children involved) has been filed with the USCIS, the USCIS review the evidence submitted to make sure that the case meets all of the eligibility guidelines set forth above. The USCIS may request further information or evidence, if it feels anything is missing or has questions or concerns. Once the USCIS is satisfied, it will make a decision to either approve or deny the I-130 petition(s).

If the USCIS approves your I-130 petition, it will be forwarded to the National Visa Center, which is part of the U.S. Department of State. The NVC will send you several fee bills, and asks you for a variety of documents which it will review before approving your case for an embassy interview. Depending on the embassy involved, once the NVC has collected and reviewed all of the required fees and documents, it will either notify you of the the date and time of your spouse's embassy interview, or simply forward the case to the embassy. If the case is forwarded, the embassy will contact your spouse directly about the interview. At some point prior to the interview, your spouse will also need to get a medical exam done by a doctor in your spouse's home country on the embassy's approved doctor list.

The focus of the interview at the embassy will be on whether or not the your marriage is valid and bona fide. If the case and your spouse have been well-prepared, the embassy should not have very many questions about that. The embassy will also investigate any prior criminal or (U.S.) immigration problems your spouse has ever had at the interview, review the results of your spouse's medical exam, and review proof that you have the financial resources to support your spouse in the U.S. If all goes well, the embassy officer will tell your spouse on the spot that your spouse got the visa, although it can take several days or even a week or two for the visa to be issued and sent to your spouse.

Any step-children coming with your spouse will normally be interviewed at the same time as your spouse (provided you filed their I-130 petitions at the same time). The focus of their interviews will be similar to your spouse's interview. Unless your step-child has independent criminal or immigration issues, or is ineligible for a visa some other technical reason, it is fair to assume that visas will be issued for them if your spouse's case is approved.

One big advantage to the immigrating spouse (and any stepchildren) is that, if they receive a visa based on an I-130 petition, they will become a legal permanent resident upon their entry to the U.S. They will not need to go through an "adjustment of status" process to become legal permanent residents, and will have permission to work right away if they want to work. That can help ease the immigrant's transition to life in the U.S.

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. This can be true even if the unmarried child does not qualify as a "stepchild" of the U.S. citizen because the marriage occured after they turned 18; but in that case, they may not be able to stay in the U.S. long-term.

Processing changes made by the USCIS in the Fall of 2004 drastically reduced I-130 Petition processing times for spouses of U.S. citizens. Processing of K3 petitions now closely tracks processing of the underlying I-130 petition, and usually the K3 visa petition is approved slightly after that I-130 petition is approved. As a result, the NVC center administratively closes most K3 visa petitions after they arrive there, since the I-130 petition has been approved and is the "preferred" petition in this situation. This is usually better from the immigrant's perspective anyway, since as mentioned above, arriving on a visa based on an I-130 petition versus arriving on a K3 visa lets the immigrant avoid having to adjust their status and makes for an easier transition to life in the U.S.

The K3 nonetheless remains a useful "back up" plan for spouses of U.S. citizens. This is true for the following reasons: (1) there is currently no separate filing fee for K3 visa petitions (the fee for the I-130 petition covers filing a K3 visa petition as well); (2) K3 visa petitions are substantially similar to the underlying I-130 petition, so that even though they involve some extra work, it is not as much as one might think; (3) it is always possible the USCIS backlogs for I-130 petitions will return, or that USCIS might suddenly change the way it processes I-130 petitions, leading to long delays in their approval.

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.

• The marriage between the U.S. citizen and foreign spouse must be "bona fide," meaning that their relationship is a real one based on love and affection, and that they did not marry in order to circumvent U.S. immigration laws.

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.

I-130 Petitions vs. the K1 / K-1 Visa:

A question I get asked regularly is whether an I-130 Petition 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 I-130 Petition/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 I-130/K3 for use by those who are already married.

The main reason people who are K1 eligible consider the I-130/K3 process is that they believe the I-130/K3 visa will process more quickly. Even if USCIS happens to be processing I-130/K3 visas faster than your regional USCIS service center is processing K1 visa petitions at a given time, any apparent advantage in I-130/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 I-130/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 I-130/K3 process, and the delay could more than wipe out any I-130/K3 visa processing time advantage.

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 I-130/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 I-130/K3 applications (this seems especially likely if a lot of people decide to use the I-130/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 I-130/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.