Wednesday, January 18, 2012

The K-1 Fiance Visa and K-3 Spouse Visa: Bring Your Loved One to the U.S. Permanently

Porter Law Office, LLC provides frequent updates on the K visa.  The K visa is a “hybrid” visa because it is a temporary visa that provides a path to a green card.  The K category includes the K-1 visa, which is for a fiance of a U.S. citizen and his or her children under 21 years of age. The K category also includes the K-3 visa, which is for a spouse of a U.S. citizen and his or her unmarried children under 21 years of age. Once you obtain a K visa, you can come to the U.S. and apply for a green card. 

The K-1 Visa: The Fiance Visa
The K-1 visa allows you to petition for your fiance residing abroad to come to the U.S. to get married.  To take advantage of the K-1 visa, you must be a U.S. citizen. The K-1 visa requires you to have met your fiance personally within two years prior to filing for the K-1 visa.  This requirement is very important and make or break your application's success.  Both you and your fiance must be free to marry.  If you have previously been married, you must provide proof that all previous marriages have been terminated. Thus, you will need copies of divorce decrees to show you are free to marry.  Again, this is important because it is against the law in the U.S. to married to two people at once (this is called bigamy). Your fiance's dependents, such as minor children, may join your fiance on a K-2 visa.  Once in the U.S. your fiance may work by applying for a work permit with USCIS. 

The time that your fiance is allowed to remain in the U.S. on the K-1 visa is limited to only 90 days.  You both must get married during that period.  It is very important to note that the 90 day period on the K-1 visa cannot be extended, under any circumstances.  Further the K-1 visa can only be used to enter the U.S. one time.  Thus, your intentions to marry must be real.  Once you are married, the K-1 visa holder has a very limited amount of time to apply for the green card.  Your immigration lawyer should be contacted immediately after the marriage to ensure you meet the timing requirements.  After your spouse obtains the green card,  your visa journey is far from over.  Your new spouse will not obtain a permanent green card, but will obain a conditional green card that lasts for only two years.  USCIS created the two-year aspect of the visa to prevent fraudulent marriages.  At the end of the two years you must prove to USCIS that your marriage is bona fide.  You do this by filing a petition to remove conditions 90 days before the expiration of the two-year period.  In sum, you must be certain of your marriage before considering applying for the K-1 visa.

The K-3 Visa: The Visa For Marriages Abroad
If you marry your spouse abroad, you may bring him or her to the U.S. on a K-3 visa.  Once in the U.S. they will have to wait to apply for a green card.  To obtain the K-3 visa, you as the U.S. citizen, must first file Form I-130, Petition for Alien Relative with USCIS.  You do this so USCIS can determine whether the marriage is bona fide.  Once USCIS receives the I-130, the K-3 visa application can be filed.  So during the period where USCIS is working on the I-130, your spouse can come to the U.S. and wait.  Similar to the K-1 visa, minor, unmarried children of your spouse may enter the U.S. on a K-4 visa. Again your spouse may apply for a work permit once they arrive in the U.S. on a K-3 visa.

Once on the K-3 visa, your spouse will be admitted into the U.S. for a period of two years.  Unlike the K-1 visa, your spouse may apply for an extension of stay no more than 120 days prior to the expiration of the K-3 visa.  The condition for applying for the extension is that your spouse has filed for their green card, which is done on Form I-485.  If your spouse has not yet filed Form I-485, your spouse must be waiting for the pending I-130 to be approved.  In either event, you and your spouse must still be married during this time period.   The K-3 visa will be termined within 30 days of any any of the following circumstances: (i) the I-130 is denied; (ii) the I-485 application is denied; or (iii) you divorce the K-3 visa holder.  Thus, it is recommended that you work with an immigration lawyer, at least at the offset, to make sure you meet all of the requirements for the K-3 visa.

Which is better: K-1 or K-3...or Neither?
There are various routes that your foreign national fiance or spouse can take to enter the U.S. Each depends on the amount of time you and your foreign fiance or spouse are willing to wait apart from each other. While the K-1 visa remains a widely used and very favorable visa category, the K-3 visa is becoming less advantageous because of the ease in which to obtain a green card through consular processing.

The fiance could enter on a B-2 visitors visa, marry the U.S. citizen, and following the wedding, apply for adjustment of status. This is the least desired route because there is a risk of being refused admission as an intending immigrant when asked by a Customs and Border Patrol (CBP) agent at the port of entry about the purpose of the visit. A B-2 visa applicant must overcome the intending immigrant presumption and entering to marry a U.S. will not look good to CBP. Thus, you should file a K-1 visa petition in lieu of coming to the U.S. on a visitor visa because under the K-1 process, there is no risk of beign refused admission as an intending immigrant.  Again, that is because the K-1 visa allows you to have the intention of coming to the U.S. permanently.  As a result, the K-1 visa can limit the headaches associated with overcoming the nonimmigrant intent involved with the B visa. 

Another option is to obtain the green card abroad.  You may marry your spouse abroad, and instead of filing for K-3, file for the green card at the consulate near to where your spouse lives.  Your spouse could then obtain the green card and come to the U.S. as a lawful permanent resident.  Consular processing eliminates the step of obtaining the K-3 visa.  So which should you use?  Well, for the K-3 visa,  you have the initial approval of the K-3 petition in the U.S. can take two to three months.  Then your spouse has to work through the consulate to obtain the actual K-3 visa, which can take an additional two to three months.  Once your spouse has the K-3, he or she must apply for the green card in the U.S., which can take an additional four months. So you are realistically looking at a year before obtaining the green card.  Consular processing, however, can be completed in a total of five months.  The main reason you would want to choose the K-3 visa is that it allows your spouse to come to the U.S. a bit quicker than if you obtained the green card at a consulate.  And, while no official source supports this view, working with the USCIS is generally an easier process than dealing with the consulates. 

Contact Porter Law Office, LLC

Porter Law Office, LLC has experience in navigating the family-based immigration requirements, including K-1 and K-3 visas. If you have a question about the K visa, contact Columbus immigration lawyer Matthew R. Porter today for a free consultation.