K-3 and K-4 Visas and the New INS Regulations

Join the Discussion 'How long does an I-129 for a K-3 application take?' BAYERNGRL     Related Resources • LIFE / 2 New Visas • LIFE Q&A • Immigration Laws • Daily Immi News    From Other Guides • ESL Site • Latino Culture US  Elsewhere on the Web • DOJ on K Visas

Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

Jennifer Wipf: Welcome to our chat on the new K-3 visa rules with guest expert Carl Shusterman, a leading immigration attorney. Please remember that these questions and answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: Good evening everyone. I look forward to answering your questions on K-3 and K-4 visas and the new INS regulations. Let's get started with the questions.

Question #1: Can any family member get the K-3 visa or who can and who can't get it?

Carl Shusterman: On August 14, 2001 the INS issued regulations implementing the K-3 and K-4 temporary visa categories that were contained in the LIFE Amendments which were enacted on December 21, 2000. The complete text of these regulations may be found at:

http://shusterman.com/k3regins.html

Question #3: Is it possible to have K-3 visa processed in a country other than where the marriage took place, despite the fact that the country where marriage took place has a visa issuing post?

Carl Shusterman: Your question illustrates one of the complexities of the new visa categories. In the case of a fiance visa, there is no restriction on where the visa may be issued, although it is usually issued in the home country of the beneficiary. However, if the beneficiary is working or studying in a third country the fiance visa may be issued in the third country.

The law pertaining to the issuance of K-3 and K-4 visas is very specific as to where the visa must be issued. One can only obtain a K-3 or K-4 visa in the country where the marriage took place. This leads to some absurd situations.

Let's suppose that a US citizen and his fiance from Britain are on a Caribbean cruise and decide to get married on the island of Aruba on the spur of the moment. The next week, the US citizen and his spouse go to the American Embassy in London and inquire about obtaining a K-3 visa. The consular officer must inform the couple that the US Embassy in London is unable, under the law, to issue such a visa. Since the marriage took place in Aruba, only the US Embassy in Aruba may issue the visa to the British spouse. And for the sake of illustrating the absurdity of the situation, let's imagine that this is the second marriage for the British spouse and that she has three children from her prior marriage. In order to apply for K-3 and K-4 visas, she must fly with her three children to the island of Aruba in order to obtain the visas. I know of no other visa classification that specifies that visas may only be issued in a certain country, especially when that country may not be the same as the country of the
applicant's nationality or residence. There are, however, two exceptions to the general rule:

1) If the marriage occurs in the United States, the applicant may apply for a K-3/K-4 visa in his home country since it is impossible to obtain a visa within the United States; and

2) If the couple is married in a country where there is no US Embassy, K-3 and K-4 visas may be issued at a consular post designated by the US State Department.

Question #4: Since the spouses and children of citizens already get in pretty fast, it seems they should create a K visa for spouses and children of green card holders. Do you know if this is under consideration?

Carl Shusterman: Congress has some sympathy for spouses of green card holders who must wait an average of 4 1/2 years to have family members immigrate to the United States. However, the sympathy does not appear to be as great as that which they have for spouses of US citizens (who, after all, can vote ;-) .

The LIFE Act provides for V visas for spouses and unmarried children under 21 years of age of lawful permanent residents, but only for those who were petitioned over 3 years ago. Last Friday, on September 7, the INS released it's long awaited V regulations. See:

http://shusterman/vregs-ins.html

Question #5: How quickly after marriage can my wife in China apply for a K visa and, all together, how long will it take her to get here?

Carl Shusterman: Since these regulations became effective less than a month ago, I feel fairly confident in stating that no one has received a K-3 or K-4 visa yet.

Therefore, it's a little too early to predict how long the INS and the State Department will take to process these petitions and visas. Your question gives me a good opportunity to summarize the process involved in obtaining K-3 and K-4 visas.

1) Once the marriage takes place, an I-130 immigrant visa petition must be filed by the citizen spouse;

2) Once the spouse receives a receipt for the I-130 petition, he or she must file Form I-129F Non-Immigrant Visa Petition to the US Immigration and Naturalization Service, PO Box 7218, Chicago, Illinois 60680-7218; and

3) Upon the approval of form I-129F, the spouse and children may apply for K-3 and K-4 visas, respectively, at a consular post in the country where the marriage took place. This process is summarized in the September 2001 issue of Shusterman's Immigration Update which was e-mailed to subscribers earlier today. It is now online at:

http://shusterman.com under "Free Monthly Immigration Newsletter." Click on "Current Issue" and again at topic #6 on the Table of Contents.

Question #6: What are the materials and forms needed and are they available to download?

Carl Shusterman: Materials and forms are available online for free download. Our Free Forms Download Page is located at:

http://shusterman.com/toc-forms.html .

Remember that there are two agencies involved in the K-3 and K-4 visa process: the INS and the State Department. The INS forms, including the I-130 Immigrant Visa Petition, the Biographical Information Form, the I-129F Non-Immigrant Visa Petition and the I-693 medical examination are all available at:

http://shusterman.com/immforms.html

Question #7: While present in the US pending green card status, may a K-3 holder travel and work? If so, are extra papers needed?

Carl Shusterman: Good question. K-3 and K-4 status, unlike fiance status which lasts for only 90 days, is valid for two years and under some conditions may be renewed. Although one may travel freely on a K-3/K-4 visa, the INS requires that K-3/K-4 visa holders (like K-1/K-2 visaholders) apply for Employment Authorization Documents (EAD) using Form I-765, which may also be downloaded for free at http://shusterman.com/immforms.html

Question #8: I am a citizen of the US about to be engaged to an Indian national. I am going to India this month to have the Hindu ceremony but may or may not obtain the marriage certificate at this point. Will a religious ceremony after the K-1 is obtained render the K-1 invalid and/or is it faster to simply get the official marriage certificate after the religious ceremony and apply for K-3?

Carl Shusterman: US immigration laws provide that if a marriage is recognized as valid in the count where it took place, it is generally considered valid for purposes of immigrating one's spouse and children to the US. By all means, make sure that you have entered into a valid marriage before submitting I-130 and I-129F visa petitions.

Although the K-3/K-4 regulations are so new that we don't know how long the INS will take to approve visa petitions and forward them abroad, we can make some general statements about the pros and cons of K-1/K-2 vs. K-3/K-4 visas.

Both sets of visas require that the INS approve a form I-129F Non-Immigrant Visa Petition and that the State Department issue the appropriate visa. However, only in the case of K-3/K-4 visas must the marriage have taken place, an I-130 Visa Petition be filed and the visa issuing post be limited to the country where the marriage took place. This would seem to make the K-3/K-4 visa issuing process more convoluted than the K-1/K-2 visa issuing process.

On the other hand, by definition, fiances of US citizens are not yet married to their future spouses. And since some persons enter the United States in K-1 status and never marry their fiances, consular officers are often skeptical as to the validity of the relationship. Even at the INS petition stage, it is important that the petition be documented carefully. It is not enough that the parties have met each other on the Internet (in a chat room perhaps!) It must be proved that the parties have actually met. Having performed spousal interviews when I worked for the Immigration and Naturalization Service, I can say that there is no guarantee that spousal petitions will be approved more readily than fiance petitions. However, if the US citizen spouse and his family travel abroad, take part in a religious wedding ceremony and the parties are legally married, this adds weight to the petition and it is not likely to be denied.

In the end, whether it is better to apply for K-1/K-2 visa status or for K-3/K-4 visa status must be evaluated on a case-by-case basis.

Question #9: Is there any way for a green card holder to get a fiance or spouse here more quickly than 4 years, even just for a visit? Or will there ever be?

Carl Shusterman: There is the V Visa. Otherwise, I recommend that you naturalize.

Jennifer Wipf: Carl's time is up now and I'd like to thank YOU for stopping by tonight. I am turning the moderation off once he leaves so you can chat amongst yourselves about this topic if you would like.

Carl Shusterman: Thank you for your questions. For those interested in additional information about the K-3 and K-4 visa categories, we link to write-ups on both the INS and State Department web sites on this issue at http://shusterman.com/life.html under "New K and V Visas." Many of you may have heard that the Senate voted to extend Section 245(i) of the law until April 30, 2002. The House of Representatives is expected to approve identical legislation sometime this week and President Bush has indicated that he will sign this legislation. However, the extended version of Section >245(i) is as different from the old 245(i) as K-3/K-4 visas are from K-1/K-2 visas. Join us on Monday. September the 24th at 5:30 p.m. PDT (8:30 EDT) for a free online chat entitled "Understanding the New Section 245(i) Law" - Thank you and good night!

Jennifer Wipf:  Thank you and good night Carl!

coming soon:

a quick & easy FAQ style recap