Six Steps to a K-3 Marriage-Based Visa

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If you are married to a U.S. citizen and have decided not to go through the whole immigrant visa application process while you are overseas, but instead plan to use the alternate, K-3 visa for U.S. entry, to be followed by a green card application in the United States, this article describes how this process was meant to play out.

But be warned: The U.S. government has pretty much decided that the K-3 visa process isn't a useful one, and will probably arrange the process so that you end up applying for a regular immigrant visa rather than a K-3. You'll see why in the description below.

Obtaining a K-3 nonimmigrant visa involves six major steps:

1. The U.S. citizen spouse submits a visa petition (Form I-130) to a USCIS “lockbox” office in the United States. That office will forward the petition to a USCIS Service Center. If the immigrant has children immigrating with him or her, the U.S. citizen spouse should also submit separate visa petitions on their behalf as well. To do so, the U.S. spouse must qualify as the child’s parent or stepparent, and can be their stepparent only if your marriage took place before the child’s 18th birthday. Separate visa petitions will be required for each child when it comes time to adjust status (apply for a green card), so the sooner you get them in, the better, particularly if the child is likely to turn 21 before the process ends.

2. After the U.S. citizen receives an I-797 receipt notice for the I-130, he or she submits a separate, “fiancé” visa petition (Form I-129F) to the USCIS Service Center from which the I-130 receipt came.

3. After USCIS approves Form I-129F, it sends word to the National Visa Center (NVC), which conducts some preprocessing procedures, and then transfers the case to the appropriate U.S. consulate. (But here's where the process may not go as planned -- if USCIS approves the I-130 before the I-129F, it will transfer that approval to the NVC first, in which case the file will be treated as an immigrant visa application, and the I-129F will be subsequently ignored.)

4. After receiving the case files, the consulate sends the immigrant instructions about forms to fill out and documents to prepare, and ultimately schedules the immigrant for an interview appointment. Soon after the interview, the immigrant should be approved for your the visa -- either a K-3 or, more likely, an immigrant visa. (Children, if any, will get derivative visas.)

5. The immigrant presents the visa (either K-3 and K-4s, if there are children, or immigrant visas, if this is the way it played out) at a U.S. airport, border, or other port of entry. They are examined by an officer of Customs and Border Patrol (CBP). Assuming everything is in order, the immigrant will be admitted to the United States.

6. After arrival, an immigrant who entered as a K-3 will be expected to apply for adjustment of status in the United States. This involves submitting Form I-485, with supporting forms and documents, to USCIS by mail. Among the more important supporting documents is the Form I-864 Affidavit of Support, which the petitioner must fill out to show sufficient financial capacity to ensure that the immigrant will not have to rely on need-based public assistance. The immigrant will also need to undergo a medical exam and submit the report with the application. After the adjustment application is received by USCIS, it will schedule the immigrant for fingerprinting, and later schedule the couple for a green card interview. There, the case will be approved (or denied).

In rare instances, USCIS will also ask your spouse to attend a “fraud interview” if USCIS or the consulate has doubts about whether your marriage is the real thing. This could happen as part of Step One or after Step Four.

How long this entire process of getting you into the U.S. takes, if you do somehow get a K-3 rather than an immigrant visa, depends mostly on how long it takes for the I-129F visa petition to be approved. This can be many months by itself. After that, expect another six weeks or so to get your consular instructions, and, assuming you send your forms back in right away, another six weeks or so for you to get your appointment.

The key thing to understand is that if the I-130 petition is approved before the consular interview and the approval paperwork gets forwarded to the consulate, the immigrant is no longer eligible for a K-3 visa, and will have to go through the entire immigrant visa application process overseas. (The concept behind the K-3 visa was to compensate for the delays experienced by married couples as they wait for approval of their Form I-130.) That can be a good thing: You will not have to submit a whole separate application to adjust status and get a green card after you are in the U.S., but can obtain an immigrant visa at the consulate, which makes you a permanent resident the minute you enter the United States.

by: , J.D.

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