When an alien wishes to enter the United States to marry a U.S. citizen, he/she must apply for a ‘K’ visa. However, to be eligible for this, the American fiancé/e of the alien must first file a petition (Form I-129F) with the INS in the area of the petitioner’s place of residence in the U.S. The approved petition is then forwarded to the U.S. Consular Office where the alien will apply for his/her visa.
Since a Fiancé/e of a U.S. citizen is considered to be an intending immigrant, he/she must submit the following documents along with the application form:
If approval is granted, the alien will receive a single entry visa (K-1), which is valid for a period of six months. At the port of entry to the United States, he/she will receive a stamp on his/her passport giving him/her authorization to work while waiting to get married to the U.S. citizen. The marriage must take place within ninety days of entry of the alien fiancé/e to the United States. No extension is granted after this period is over. Also, the alien may not travel out of the United States until the marriage is over. If he/she has to do so, he/she will need a new visa.
There are three important requirements which must be met for the marriage to be considered right for immigration purposes:
After marriage, the alien spouse must apply to the INS for conditional permanent residence status along with a new work permit.
The U.S. citizen may also apply for his fiancé/e’s children (under 21 years of age) to accompany him/her to the United States. They would be granted a K-2 visa.
EXPANSION OF THE ‘K’ VISA CATEGORY UNDER THE NEW LIFE ACT
The recently passed Legal Immigration and Family Equity (LIFE) Act expands the use of the ‘K’ visa to include spouses and children of U.S. Citizens as well as fiancées. The provision was intended to fill a lacuna in the law and help the huge backlog that existed at that time for processing family sponsored petitions. Spouses of U.S. citizens who are outside the United States and are forced to wait outside the country for the approval of their immigrant petition, would be permitted to enter the U.S. on a ‘K-3 visa and obtain work authorization pending approval of their immigrant petition. Any minor children, accompanying the spouse, can also be included in the petition.
In order to qualify the following conditions must be met:
All the other requirements of the K visa would apply to K-3 visa applicants under this new law. Since the expanded provisions deal with marriage, it is important that the marriage must be legally valid and must not have been entered into solely for immigration benefits. As with the earlier provisions, the K-3 visa holder will be permitted to work in the US after obtaining work authorization.
Currently there is no time benefit in filing for a K-3 as opposed to the regular I-130 for the spouse of a US Citizen and hence filing a K-3 is not really advantageous and in fact has the disadvantage of filing with two sets of fees- one for the i-130 petition and second for the I-129F.
Click here for further details on the implementation of the ‘K-3’ nonimmigrant visa provision of the LIFE Act.
INS InfoLinks :
The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.