Areas of Practice

Family Immigrant Petition

K-1/K-3

If you petition for a fiancé(e) visa, you must show that:

• You (the petitioner) are a U.S. citizen.
• You intend to marry within 90 days of your fiancé(e) entering the United States.
• You and your fiancé(e) are both free to marry and any previous marriages must have been legally ter-minated by divorce, death, or annulment.
• You met each other, in person, at least once within 2 years of filing your petition. There are two excep-tions that require a waiver:

If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.
If you prove that the requirement to meet would result in extreme hardship to you.

Application Process

File Form I-129F, Petition for Alien Fiancé(e).

After the Fiancé(e) Visa is Issued
Once issued, the fiancé(e) visa (or K-1 nonimmigrant visa) allows your fiancé(e) to enter the United States for 90 days so that your marriage ceremony can take place. Once you marry, your spouse may ap-ply for permanent residence and remain in the United States while USCIS processes the application.

Children of Fiancé(e)s
If your fiancé(e) has a child (under 21 and unmarried), a K-2 nonimmigrant visa may be available to him or her. Be sure to include the names of your fiancé(e)’s children on your Form I-129F petition.

Permission to Work
After admission, your fiancé(e) may immediately apply for permission to work by filing a Form I-765, Application for Employment Authorization.

What happens if you do not marry within 90 days?
Fiancé(e) status automatically expires after 90 days. It cannot be extended. Your fiancé(e) should leave the United States at the end of the 90 days if you do not marry. If your fiancé(e) does not depart, he or she will be in violation of U.S. immigration law. This may result in removal and can affect future eligibility for U.S. immigration benefits.

To be eligible for a K-3 nonimmigrant visa, an individual must:
• Be married to a U.S. citizen
• Have a U.S. citizen spouse file Form I-130, Petition for Alien Relative

A child may be eligible for a K-4 visa if:
• He or she is unmarried, under 21, and the son or daughter of a qualified K-3 nonimmigrant visa applicant

Application Process

To obtain a K-3 or K-4 nonimmigrant visa, you (the U.S. citizen petitioner) must file two petitions with USCIS and apply for a visa from the U.S. Department of State.

A child may be eligible for a K-4 visa if:
• Form I-130: File on behalf of your non-citizen spouse with the USCIS Service Center having jurisdiction over your place of residence. You will then receive a Form I-797, Notice of Action, indicating that USCIS has received the Form I-130.
• Form I-129F, Petition for Alien Fiancé(e): File this after filing Form I-130 and include a copy of the I-797, on behalf of the non-citizen spouse and any children. Submit to the USCIS Service Center where the underlying Form I-130 petition is pending. There is no fee when filing a Form I-129F for a non-citizen spouse (K-3). If your non-citizen spouse has any minor children seeking K-4 nonimmigrant visas, they should be listed on the I-129F filed on your spouse’s behalf to facilitate the application process.

If approved, USCIS will forward the I-129F to the U.S. Department of State for consular processing.

The non-citizen spouse and any minor children will then need to apply to the U.S. Department of State for the K-3 or K-4 nonimmigrant visa.

Benefits and Limitations of K-3/K-4 Nonimmigrant Visa
• Seeking to be admitted to the United States on a K-3 nonimmigrant visa can shorten the waiting period for non-citizen spouses to enter the United States.
• Once admitted to the United States, K-3 nonimmigrants may apply to adjust status to a permanent resi-dent at any time. Upon admission to the United States, K-4 nonimmigrants may file an application for adjustment of status concurrently with or at any time after a Form I-130 has been filed by the U.S. citizen petitioner.
• Upon admission, K-3 and K-4 nonimmigrant visa holders may obtain employment authorization. They can obtain evidence of eligibility to work legally in the United States by filing Form I-765, Application for Employment Authorization. Upon filing an application for adjustment of status, K-3 and K-4 nonim-migrant visa holders may also apply for employment authorization based on that pending application even if the K-3 or K-4 nonimmigrant status expires.

The limitations of the K-3/K-4 nonimmigrant visa include:
• The Department of Homeland Security only admits K-3 or K-4 nonimmigrant visa holders for a 2-year period. K-3 or K-4 nonimmigrant visa holders may apply to USCIS for an extension of status in 2-year increments as long as the marriage-based I-130 visa petition or a corresponding application for adjustment of status or visa application is still pending adjudication.

Automatic Expiration of a K-3 Nonimmigrant Visa

A K-3 visa holder’s authorized stay automatically expires 30 days after any of the following events:
• USCIS denies the Form I-130 visa petition
• USCIS denies a Form I-485 filed by the K-3 visa nonimmigrant holder
• The K-3 nonimmigrant visa holder decides to apply for an immigrant visa at the appropriate U.S. consulate abroad, and the consulate denies the immigrant visa application
• Termination of the marriage through divorce or annulment

If Your Child Turns 21 Before Obtaining Immigrant Status

Holders of K-4 nonimmigrant visas will be admitted to the United States for 2 years or until the day before their 21st birthday, whichever is shorter. The K-4 nonimmigrant visa holder’s status will expire when he or she turns 21. If the K-4 nonimmigrant visa holder has a pending application for adjustment of status, he or she may continue to be eligible for adjustment of status under the Child Status Protection Act.

If Your Child Marries Before Being Issued an Immigrant Visa

The K-4 nonimmigrant visa holder’s status automatically expires 30 days after he or she marries.

Obtaining a K-4 Visa for a Child of Your Spouse

In order for a child to obtain a K-4 nonimmigrant visa, there is no requirement that a separate immigrant petition (Form I-130) be filed on the child’s behalf. However, a separate Form I-130, filed on the child’s behalf, is required for the child to adjust status.

Advance Parole for K-3 or K-4 Family Members

Applicants presently in the United States in a K-3 or K-4 nonimmigrant classification may travel outside the United States and return using their nonimmigrant K-3 or K-4 nonimmigrant visa. The only time advance parole is necessary is if the K-3 or K-4 nonimmigrant status has expired and the applicant has an adjustment of status application that remains pending.

Changing to Another Nonimmigrant Visa Category

K-3 or K-4 nonimmigrant visa holders cannot change status in the United States to another nonimmigrant visa category. Affidavit of Support

Form I-864, Affidavit of Support, is not required when applying for the K-3 or K-4 nonimmigrant visa. However, the K-3 or K-4 nonimmigrant will need to furnish evidence showing that he or she will not become a public charge while in the United States. You may opt to complete Form I-134, Affidavit of Support, to help demonstrate that your K-3 or K-4 nonimmigrant will not become a public charge while in the United States. When the K-3 or K-4 nonimmigrant visa holder applies for adjustment of status, he or she will adjust status as an immediate relative, and at that time will need to file Form I-864.

Expiration of K-3 Status While Applying for Adjustment of Status

The K-3 nonimmigrant visa holder can apply for an extension of status by filing Form I-539, Application for Extension of Stay, with USCIS no more than 120 days prior to the expiration of the K-3 nonimmigrant visa. By obtaining an extension of K-3 nonimmigrant status, your spouse will be able to leave the United States and return without advance parole. Your spouse may also choose to apply for advance parole based on the pending application for adjustment of status. If your spouse wants to apply for advance parole, he or she will need to file Form I-131, Application for Travel Document.

K-3 or K-4 Nonimmigrant & Lawful Status

K-3 and K-4 visa holders apply for adjustment of status as immediate relatives. They are subject to the same limitations in applying for adjustment of status as any other immediate relative who had been admitted on a nonimmigrant visa but failed to maintain lawful status.

K-3 or K-4 Status After Approval of an Application for Adjustment of Status

If adjustment of status is approved, you will become a permanent resident of the United States. If, at the time of approval, your marriage is less than 2 years old, the K-3 or K-4’s permanent residence is issued on a conditional basis. You and your spouse will then be required to file a Form I-751, Petition to Remove Conditions of Residence within the 90 day period prior to the expiration date on the green card.