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K-1 VS K-3 VISA DILEMMA: WHEN AND WHERE TO MARRY A. B. The K category of nonimmigrant Visas allow fiancé(e)s or spouses of U.S. citizen to enter into the U.S. as non immigrants and apply for permanent residence status after their entry. Below is a brief description and analysis of the K-1fiancé(e) Visa and the K-3 spouse Visa to help you decide which category is right for you. 2
K-1 Visa K-3 Visa 3
#1. K-1 VISA The K-1 fiancé(e) Visa is available to U.S. citizens who would like to marry a foreign national living abroad in the U.S. and then have the fiancé(e) reside in the U.S. permanently. A. Requirements I. Have Met Previously The U.S. immigration law requires that you have met your foreign national fiancé(e) personally within the two years prior to filing the K-1 Visa petition. Exceptions can be made for cultural and/or religious reasons. 4
II. Have The Freedom To Marry Both you and your foreign national fiancé(e) must be free to and have the intention to marry. You must show that all prior marriage have been terminated (annulment, divorce or death), and there are no prohibitions against the proposed marriage (e.g., marriages that violate existing laws). III. File Form I-129F, Petition For Alien Relative With USCIS 5
IV. Must Marry Within 90 Days Of Entry After receiving the K-1 Visa, you must marry your fiancé(e) within 90 days of his/her entry in order for your fiancé(e) to be eligible for permanent residence in the U.S. without having to go back to his/her home county. 6
Important The personal meeting requirement may be waived by the Attorney General upon proof that compliance would: # Result in extreme hardship on the U.S. Citizen; or # Violate strict and long-established customs of your fiancée s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding 7
V. File Adjustment Of Status If you and your fiancé(e) marry within 90 days of his/her entry, your new spouse can file the Adjustment of Status Application to formally apply for permanent resident status or the green card. At that time, he or she can also file applications for a work permit and/or travel permit. 8
B. Additional Benefits I. Accompanying Dependants The minor, unmarried children of your fiancé(e) may be issued a K-2 Visa without having to file additional paperwork. The cut-off date for issuance of a K-2 Visa is one year from the date of issuance of the K-1 Visa. Thereafter, if you have married, an immediate relative petition filed by you or second preference petition filed by your spouse is required for the dependent. 9
II. Employment Authorization Your fiancé(e) may apply for a Work Permit immediately after entering into the U.S. on K-1 Visa and before applying for Adjustment of Status. There is no need to wait for the I-130 approval. At that time, he or she can also file applications for a work permit and/or travel permit. TI P K-2 Dependents may be listed in the same K-1 petition and don t require a separate petition or separate filing fee. 10
C. Duration And Extension Of Stay I. Period Of Stay Your fiancé(e) is authorized to stay in the U.S. for 90 days on a K-1 Visa which may only be used for a single entry. II. Extensions Your fiancé(e) is not entitled to apply for Extension of Stay on a K-1 Visa. TI P If the marriage does not occur within 90 days, the K-1 nonimmigrant must leave the U.S. or become subject to removal. K-2 Dependents are also ineligible to extend their stay in the U.S. 11
D. Change Of Status I. Period Of Stay Your fiancé(e) is not entitled to change status to any other nonimmigrant Visa category. After the marriage, your fiancé(e) should apply for Adjustment of Status to permanent resident status based upon the marriage to you. K-2 dependents may also apply for Adjustment of Status to permanent resident status. 12
Important If the marriage is less than 2 years old on the date of the grant of permanent residence, then the spouse (and any K-2 Dependents) will receive a 2 year grant of conditional permanent residence. If the marriage is more than 2 years old on the date of the grant of permanent residence, the spouse (and any dependents) will receive a full grant of permanent resident status. 13
K-1 Visa (Challenges) My Case Scenario Samuel Jones I am a U.S. Citizen. My fiancée is a Colombian, currently residing in Colombia. She has never been to the U.S. before. We had first met in Colombia about 8 months ago when I went there on a brief business visit. Since then I have been travelling to Colombia often to meet her. We would like to get married in the U.S. this August. She has a four year old son from her prior marriage that ended in divorce. We would like her and her son to be able to live in the U.S. after our marriage. What are our options?
VisaPro Attorney Says (Solutions) The K-1 fiancé(e) Visa permits a foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. Citizen sponsor in the U.S. and complete the process of obtaining permanent residence while in the U.S. To be successful in securing a K-1 Visa for your fiancée, you must be able to show that you are a U.S. Citizen; both you and your fiancé(e) are free to marry, meaning any previous marriages have been legally terminated by divorce, death, or annulment; you have met each other, in person, at least once within 2 years of filing your petition; and both of you intend to marry within 90 days of your fiancée entering the United States under the K-1 Visa. Your fiancée s 4 year old son can seek a K-2 Visa to come to the U.S. VisaPro Attorney Thomas Joy
VisaPro Attorney Says (Solutions) To secure a K-1 Visa for your fiancée and the K-2 for your fiancée's son, you must file a Form I-129F, Petition for Alien Fiancé(e) with the USCIS. You must make sure to include details of her son on the Form I-129F. Once the Form I-129F is approved, it will be sent to the National Visa Center (NVC), which will process and forward it to the U.S. Embassy or Consulate nearest to your fiancée's place of residence in Colombia. The Embassy or Consulate will invite your fiancée and her son to apply for their K-1/K-2 Visas. The child's natural father may be required to give permission for his son to leave the country permanently. Once the K-1/K-2 Visas are stamped in their passports, your fiancée and her son will be able travel to the U.S. VisaPro Attorney Thomas Joy
VisaPro Attorney Says (Solutions) You must get married inside the U.S. within 90 days of her arrival in to the U.S. Once married, she and her son will be able to file their Green Card applications from inside the U.S. through a process called Adjustment of Status. VisaPro Attorney Thomas Joy
#2. K-3 VISA The K-3 Spouse Visa allows spouses of U.S. citizens to enter the U.S. in a nonimmigrant Visa category while they wait until they are able to apply for lawful permanent residence status (Adjustment of Status). A. Requirements I. Married To U.S. Citizen To apply for K-3 Visa the foreign national should be married to you, a U.S. Citizen, and want to enter the U.S. to await the availability of permanent residence. 18
II. File Form I-130, Petition For Alien Relative And Form I-129F, Petition For Alien Fiancé(e) You must have filed Form I-130, Petition for Alien Relative, on behalf of your foreign national spouse with the USCIS for the purposes of an immigrant Visa before being able to file Form I-129F to apply for the K-3 Visa. 19
III. File The Adjustment Of Status Application After entering on the K-3 Visa, your spouse can file the Adjustment of Status application based on the pending Form I-130. TI P If the K-3 Visa applicant s I-130 petition is approved before or at the same time as the K-3 Visa application, a K-3 Visa will not be issued, because the consular post will simply go forward and adjudicate the immigrant visa. 20
B. Benefits I. Accompanying Dependents The minor, unmarried children of your fiancé(e) may be issued a K-4 Visa without having to file additional paperwork. II. Employment Authorization Your spouse may apply for a Work Permit after entering into the U.S. on a K-3 Visa. 21
III. Social Security Number Your spouse may apply for a social security number after entering the U.S. on a K-3 Visa. TI P K-3 Visa Holders may seek to renew their employment authorization 22
C. Duration And Extension Of Stay I. Period Of Stay Your spouse will be admitted into the U.S. for an initial period of two years on a K-3 Visa which can be used for multiple entries. II. Extensions Your spouse may apply for an Extension of Stay no more than 120 days prior to the expiration of the K-3 Visa. 23
Important To be eligible for an Extension, the K-3 Visa Holder: # Must have filed the I-485 or an application for an immigrant Visa; or # If the I-485 or application for immigrant Visa has not been filed, must still be awaiting approval of a pending I-130; # The foreign national must still be married to the U.S. Citizen spouse who petitioned for the K-3 status. K-4 dependents may also apply for Extension of Stay 24
D. Change Of Status Your spouse is not entitled to Change Status to any other nonimmigrant Visa category. Your spouse should apply for Adjustment of Status to permanent residence upon reaching the U.S. TI P K-3 status will terminate 30 days after the occurrence of any one of the following: # I-130 petition is denied; or # Application for immigrant Visa is denied; or # I-485 Adjustment of Status application is denied; or # The K-3 spouse s divorce from the U.S. citizen becomes final. 25
K-3 Visa (Challenges) My Case Scenario Mark de Castro I am a naturalized U.S. Citizen. My fiancée is from Philippines and we are getting married next month in Manila. What would be the best visa option that would allow her to join me in the U.S. at the earliest after our marriage?
VisaPro Attorney Says (Solutions) As a U.S. Citizen, you can sponsor your wife for permanent residency by filing a Form I-130 with USCIS along with evidence to prove your valid marriage. Once the I-130 is approved, it will be forwarded to the Department of State's National Visa Center (NVC), which will then provide you with appropriate instructions. After the necessary documents are submitted and proper fees are paid, an immigrant Visa interview will be scheduled for your wife at a U.S. Consulate. Your wife will need to schedule and complete her medical examination and any required vaccinations before her Visa interview. If the application is approved at the consular interview, the immigrant Visa will be stamped in her passport and she will be able to enter the U.S. VisaPro Attorney Thomas Joy
VisaPro Attorney Says (Solutions) The I-130 immigrant Visa petition process may take anywhere from 8 to 12 months. You can attempt to speed up the Green Card process by filing a nonimmigrant K-3 Visa for your spouse. The K-3 Visa allows your spouse to come to the U.S. with a nonimmigrant Visa so that she can complete the process of obtaining permanent residence while in the U.S. VisaPro Attorney Thomas Joy To try to obtain the K-3 Visa, once you receive a receipt from the USCIS confirming proper filing of the I-130 petition, you must file Form I-129F with the USCIS, along with the I-130 receipt notice.
VisaPro Attorney Says (Solutions) If the K-3 Visa petition is approved earlier than the I- 130 petition, the NVC will forward the K-3 Visa petition to the U.S. appropriate Consulate, enabling your wife to appear for a Visa interview and seek a nonimmigrant K-3 Visa to travel to the U.S. while the immigrant Visa application is still pending. If the K-3 Visa is approved, your wife will be able to travel to the U.S. sooner and live in the U.S. with you while the rest of the Green Card process is being completed. VisaPro Attorney Thomas Joy
THE BIG QUESTION: WHICH ROUTE TO TAKE? Both options have pros and cons that need to be considered when choosing the option that s right for you and your fiancé(e). K-1 K-1 Pros K-1 Cons K-3 K-3 Pros K-3 Cons 30
K-1 Pros.. 1 The total processing time of a K-1 Visa (I-129F. Processing to issuance of the K-1 Visa) is usually shorter than the K-3 Visa processing or immigrant Visa processing. It usually averages about 6-9 months. 2 You can get married in the U.S. without risking an intending immigrant refusal by trying to enter the U.S. on a B-2 Visa or Visawaiver in order to get married. 3 Once married, you don t have to file the Form. I-130, Petition for Alien Relative. Your fiancé(e), now spouse, can directly file for the Adjustment of Status to obtain the green card. 4 The K-2 dependents are included on the I-129F (no additional application is needed) and can file the Adjustment of Status application at the same time as the K-1 Visa holder.
K-1 Cons.. 1 Realistically, it is generally harder to prove that 2 After your fiancé(e) comes to the U.S., if you he you and your fiancé(e) are in a bona fide or she must leave before you can get married or relationship leading to marriage than it is if you before you can file the Adjustment of Status, are already married. then the only way for him or her to re-enter is to file the Visa application again or file the I-130 and complete immigrant Visa or K-3 Visa processing, respectively.
K-3 Pros.. 1 The total processing time of a K-3 Visa (I-130 2 As opposed to the K-1 Visa, once your spouse is 3 Since the I-130 continues to be processed after filing to I-129F Processing to issuance of the K-3 the issuance of the K-3 Visa or I-129F approval, Visa) is usually shorter than immigrant Visa the K-3 spouse can still decide to pursue processing. It usually averages about 7-10 consular processing once the I-130 is approved months. without filing any additional paperwork... 4 The K-4 dependents are included on the I-129F here, he or she may travel for up to 2 years on the (no additional application is needed) and can multiple entry Visa issued by the consulate. file the Adjustment of Status application at the same time as the K-3 Visa holder. If going through regular immigrant Visa processing, the U.S. citizen spouse would have to file a separate I-130 petition for each child.
K-3 Cons 1. Based on current rules, if an I-130 is approved 2. As opposed to immigrant Visa processing when before or simultaneously with the K-3 your spouse will enter the country as a application, then the K-3 Visa application permanent resident, the K-3 spouse will have to process will be closed and only the immigrant file the Adjustment of Status application (along Visa application will be processed. Current with the attendant filing fees, which are more processing times for the I-129F and the I-130 at than immigrant Visa fees) and your spouse will the USCIS Service Centers are about the same have to attend another interview. now so this is happening more often than not, which means the U.S. citizen loses all the fees paid for the I-129F.
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VISAPRO ATTORNEYS Thomas Joy Ancy S. Varghese A.R. Keshmiri Over 36 years of immigration law experience Near 100% success helping clients with immigration matters Specialized expertise in EB-1 and EB-2 NIW green cards Highly successful in securing O-1 Visas Over 12 years of immigration law practice Thousands of cases handled successfully 36
ABOUT VISAPRO VisaPro was established in October 2002 with a dream to provide exceptional U.S. immigration legal services at reasonable costs to companies and individuals around the globe and today we are proud to say that we have succeeded. VisaPro offers services in the following areas: Investor and Entrepreneur Advisory Services Work Visas: E-3, H-1B, H-2B, H-3, L-1, O, P-1, P-3, TN Investor Visas: E-1, E-2, EB-5 Green Cards Employer Immigration Compliance 37
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