By Charles Wheeler and Kevin Woehr
It has been so long since U.S. citizens filed K-3 petitions on behalf of their spouses residing abroad that most practitioners probably do not know it is an option. Why would a spouse enter on a nonimmigrant visa when he or she could immigrate as a lawful permanent resident (LPR)? The answer: It may be faster in terms of bringing the spouse into the United States and reuniting the couple. But that has been true only recently, with the slowing down of I-130 processing and the comparable speeding up of I-129Fs.
What is the origin of the K-3 Visa?
K-3 visas were part of the Legal Immigration and Family Equity Act (Life Act) that was implemented on Dec. 21, 2000. The K-3 visa category was established with the aim of offering an alternative to immigrant visa processing for the spouses of U.S. citizens due to the considerable backlog in the adjudication of I-130 petitions. The presumption was that processing for the K-3 visa by the Department of State (DOS) would be faster than for an immigrant visa. The Life Act also extended the cut-off date and eligibility period for adjustment of status applicants under 245(i). And it created the V visa/V status category for certain children and spouses of LPRs who had filed I-130s on their behalf and were allowed to enter the United States while waiting for the priority date to become current.
Why did it go out of fashion?
With the acceleration of the processing of I-130 petitions by the service centers and the comparable deceleration for processing the I-129F petition, the K-3 option soon lost most of its rationale. In addition, the DOS provided guidance on cases where both the I-130 petition and the I-129F had been approved and forwarded to the National Visa Center (NVC). In those circ*mstances the NVC and the consulates would stop processing of the K-3 visa and administratively close the case. DOS would proceed only with the immigrant visa application. If the NVC had received only an approved Form I-129F and the I-130 petition was still pending, the agency would proceed with nonimmigrant visa processing and would forward the petition to the appropriate U.S. consulate.
Upon receipt of an approved I-129F petition for a K-3 applicant, consular staff would check the Person Centric Query Service (PCQS) to determine if the associated I-130 petition had already been approved. If it had been approved, the consular post would not issue a K-3 visa. Rather, it would wait and simply adjudicate the immigrant visa application that would come later.
What is the cost difference?
The process for immigrating on a K-3 visa and later applying for adjustment of status involves filing the following: Form I-130 ($535); Form I-129F (free); DS-160 ($265); and I-485 ($1,225). Applying for an immigrant visa involves filing the following: I-130 ($535); I-864 ($120); DS-260 ($325); and immigrant fee ($220). Both options involve submission of biometrics and a medical exam; the vaccination requirements can be delayed for the K-3 applicant until the adjustment stage. The K-3 has to pay $825 more to become an LPR than a spouse who becomes one based on an immigrant visa.
Who qualifies for a K-3 visa and what is the process?
The spouse of a U.S. citizen can be granted a K-3 visa to enter the United States as a nonimmigrant if the parties entered a bona fide marriage — inside or outside the United States — and the U.S. citizen has filed a Form I-130, Petition for Alien Relative. The U.S. citizen would then need to file a Form I-129F, Petition for Alien Fiancé(e). If the USCIS approves the I-129F, it forwards it to the NVC where a criminal records check is performed with the National Crime Information Center. Once cleared, the NVC forwards the I-129F electronically to the appropriate consular post. The post then sends the beneficiary a letter outlining the documentary requirements necessary for visa issuance, including the location for the medical exam. If the marriage took place outside the United States, the beneficiary applies for the K visa at the U.S. consulate in the country where the marriage took place. All the grounds of inadmissibility apply; if a waiver is necessary, it is filed on Form I-601 and is governed by the process for immigrant visa applicants.
If granted the K-3 visa, the beneficiary enters the United States and awaits approval of the I-130 petition. The K-3 visa will allow for multiple entries and is valid for two years. K-3 visa holders are eligible to apply for employment authorization under category (a)(9). They are also eligible to file for an extension of stay if the I-130 has yet to be adjudicated. Once the I-130 is approved, the K-3 spouse may apply for adjustment of status on Form I-485, Application to Register Permanent Residence or Adjust Status. Or, in the alternative, the K-3 spouse may file the I-485 while the I-130 petition is still pending. Like the K-1 fiancé(e), a K-3 cannot adjust status except on the basis of marriage to the I-129F petitioner.
Who qualifies for a K-4 Visa?
Minor children of the K-3 spouse are entitled to enter as derivatives on a K-4 visa; no separate I-129F petition needs to be filed on their behalf. Most derivatives will be the stepchildren of the U.S. citizen spouse. But even if the children are 18 years or older when the marriage took place, they can still enter as derivatives, provided they are under 21. There is limited benefit in doing that, however, since the K-4 child would need an I-130 petition to be filed in his or her behalf by the U.S. citizen in order to adjust status (except in the Seventh Circuit). If the K-4 derivative cannot be classified as a stepchild, he or she would need to depart when the time allowed on the I-94 expires. The Child Status Protection Act (CSPA) would not apply to preserve the derivative child’s age for purposes of K-4 eligibility. The CSPA would apply once the U.S. citizen stepparent files a separate I-130 on the child’s behalf to preserve their immediate relative status.
What is different now?
Average I-130 processing times have nearly doubled in the past five years. Depending on the U.S. Citizenship and Immigration Services service center, current I-130 processing times are averaging between 13.5 and 50 months, with most service centers processing them within 13.5 to 15.5 months. Current I-129F processing times are averaging between 4.5 and 19 months, with most service centers processing them within 10.5 to 16.5 months. Given these processing time differences, K-3 petitions may be up to three months faster than an I-130 petition (or much more if processed through the Nebraska Service Center).
This processing time difference may be further compounded by the DOS processing times. In Mexico, for example, the DOS recently shifted K visa processing from the U.S. consulate in Ciudad Juarez to the U.S. embassy in Mexico City. K-3 visa applicants, therefore, no longer find themselves in the one-and-a-half-year queue for an interview in Ciudad Juarez, where most family-based immigrant visa petitions are processed.
In light of these new realities, it may be worth re-considering K-3 visas. With an eye on processing times, practitioners should inform their clients about the various options and discuss comparisons between the K-1, K-3, and immigrant visa processes. We have updated a summary chart, originally created by World Relief Chicagoland, that may help illustrate that. Although there are many factors to consider — cost, risk of denial/refusal, place of marriage, derivative benefits, etc. — reducing the amount of time the parties are separated will always be one of the most significant factors.
Kevin Woehr is a DOJ fully accredited representative and the Training and Technical Support Supervisor at World Relief Chicagoland, Immigration Legal Services. He starts law school in the fall.
