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K Status for Fiances and Spouses of United States Citizens

Written by Henry J. Chang

K-1 Status for Fiances of U.S. Citizens

The Immigration and Nationality Act ("INA") grants K-1 nonimmigrant status to an alien fiance(e) of a U.S. citizen who seeks to enter the U.S. solely to complete a valid marriage within 90 days after such entry. K-1 visas are only permitted where the petitioner is a U.S. citizen, not a U.S. permanent resident. K-2 status is granted to the dependent minor children of an alien fiance(e) who are accompanying or following to join that fiance(e).

This category is used where the alien intends to remain in the U.S. after the marriage until his or her status is adjusted to that of permanent residence. Because it is clear that the fiance(e) intends to remain permanently in the United States, there is no requirement that he or she maintain an unrelinquished residence abroad.

Note: if the alien can establish the existence of a residence abroad to which he or she intends to return after the wedding, the alien may enter the United States as a B-2 visitor for pleasure. In such a case, the alien may leave the United States after the wedding and apply abroad for an immigrant visa as a spouse rather than as a fiance(e).

Both the U.S. citizen petitioner and the alien beneficiary must have a bona fide intention to marry and be legally free to marry during the entire 90-day period following the beneficiary's admission to the United States. The petitioner must also establish that the petitioner and beneficiary have met in person within the two years immediately preceding the filing of the petition, although an exemption from this requirement may be obtained if compliance would result in extreme hardship or would violate long-established customs of the beneficiary's foreign culture or social practice. If the fiance(e) does not marry the petitioner within the 90 day period, he or she must depart from the United States.

An alien admitted to the United States as a fiance(e), is authorized to be employed in the United States for the duration of the visa without any restrictions as to the type of employment or location thereof. However, it is necessary to apply for an employment authorization document. Although United States Citizenship and Immigration Services ("USCIS") used to issue an EAD stamp in the fiance(e)'s passport at the time of admission, many ports of entry no longer do this. If the fiance(e) does not receive an EAD stamp at the time of admission, he or she will have to apply at the district office.

Once the alien fiance(e) is married, he or she (and any dependents) may apply for adjustment of status from K-1 to permanent resident. The alien should refrain from travel outside the United States while the adjustment application is pending (unless advance parole is first obtained.) Further information regarding adjustment of status appears in our adjustment of status article.

K-3 Status for Spouses of U.S. Citizens

On December 21, 2000, the Legal Immigration and Family Equity Act (the "LIFE Act") became law. The LIFE Act extended K visa benefits to the spouse and unmarried minor children of U.S. citizens. However, until the former Immigration and Naturalization Service ("INS"), the predecessor to USCIS, finally published interim regulations relating to the K-3 and K-4 categories on August 14, 2001, it did not accept petitions filed on behalf of these aliens.

The K visa is now available to the spouse of U.S. citizens and their unmarried children under age 21 who are outside the United States awaiting processing of their green card petitions. Spouses of U.S. citizens are classified K-3 and their unmarried children under are classified K-4.

Pursuant to INA §101(a)(15)(K)(ii), there are three requirements for an alien to receive this classification:

  1. The principal alien must already be married to a United States citizen who has filed a family-based petition (Form I-130) on his or her behalf;

  2. The same United States citizen spouse must be petitioning on the alien's behalf to obtain a K nonimmigrant visa (Form I-129F); and

  3. The alien must be seeking the enter the United States to await the "availability of an immigrant visa." USCIS interprets this phrase to mean the approval of the adjustment of status application or application for an immigrant visa.

Form I-130 needs to be filed on behalf of the principal alien but the U.S. petitioner is not required to file a Form I-130 on behalf of the alien's children seeking K-4 nonimmigrant status, since K-4 aliens are dependent upon the K-3 for their status. However, it is recommended that Form I-130 be filed on behalf of any K-4 aliens in any event, since they will not be permitted to seek permanent residence until their I-130 petitions have been approved.

K-4 aliens must be unmarried and under age 21 in order to continue to meet the definition of "child" under INA §101(b)(1). The definition of "child" is described in greater detail in our family-based immigration article.

The K petition must be approved by USCIS. The K-3/K-4 alien must then obtain a visa prior to seeking admission to the United States. Although Canadian citizens are visa-exempt for most purposes, they still require a visa for admission under the K classification.

If the marriage took place abroad, the K visa must be issued at an immigrant visa issuing consular post located in the same foreign state where the marriage took place. An exception exists where the no U.S. consulate exists in that foreign state. In such cases, the visa must be issued at a consular post having jurisdiction to issue immigrant visas for aliens having the alien's nationality.

The USCIS regulations state that aliens already in the United States under some other nonimmigrant category will not be permitted to change status to K-3 or K-4 while in the United States. However, there is nothing stopping the alien from applying for a K-3 or K-4 visa from abroad and reentering under that classification.

The USCIS regulations also state that K-3 and K-4 nonimmigrants may not change to any other nonimmigrant classification while in the United States. However, they are permitted (and expected) to seek permanent residence by adjustment of status or consular processing abroad. They may only do so as a result of a marriage to the original U.S. citizen petitioner who filed the petition on behalf of the K-3 or K-4 nonimmigrants.

Aliens appearing at ports of entry with a valid K-3 visa will be inspected and, if admissible, will be admitted for a period of two years. Similarly, K-4 dependents will be admitted for a period of two years or until the day before his or her 21st birthday, whichever is shorter.

Following the two-year admission period, a K-3 or K-4 nonimmigrant may apply to USCIS for an extension of stay in two-year increments. Since USCIS believes that the purpose of these classifications is to provide family reunification while the immigration process is ongoing, USCIS will require the alien seeking an extension of stay to have filed a Form I-485 or an application for an immigrant visa, unless the alien is still awaiting approval of the pending Form I-130 or is able to provide USCIS with "good cause" why this has not been done. Form I-130 should be filed on behalf of the K-4 dependents at the earliest possible time.

The status of an alien who enters under K-3 or K-4 status will terminate 30 days following the denial of the family-based petition. If this occurs, the alien must leave the United States. For the purpose of termination of K status, the petition is denied when the applicable administrative appeal has been exhausted, or the period to appeal has expired.

In addition, a finding by USCIS that a fee or other consideration was given for the purpose of filing the family-based petition or the petition to obtain K nonimmigrant status for a spouse results in termination of K status and the alien being placed in removal proceedings. This does not apply to a fee or other consideration paid to an attorney for assistance in preparation of a lawful petition.

Aliens admitted to the United States as K-3 or K-4 nonimmigrants are authorized to work incident to their status as are K-1 and K-2 nonimmigrants. However, like K-1 and K-2 nonimmigrants, K-3 and K-4 nonimmigrants must still obtain an employment authorization before commencing their employment.

Aliens classified as K-3 or K-4 who are seeking to renew their employment authorizations will be required to show that they are pursuing the immigration process. They will have to show that Form I-130 has been filed on their behalf and, if approved, that their application for an immigrant visa or their application for adjustment of status has been filed with USCIS or Department of State, as applicable.

The LIFE Act does not exempt aliens applying for the new K-3 and K-4 nonimmigrant classifications from the three- and ten-year bars under INA §212(a)(9)(B), as it did for the V classification, which also arose from the LIFE Act.

Aliens present in the United States in K-3 or K-4 status may travel outside the United States and return using their K-3 or K-4 visas, even if they have filed for adjustment of status. USCIS will not presume that their departure constitutes abandonment of the adjustment application. This is different from the former INS' treatment of K-1 and K-2 nonimmigrants, who must obtain advance parole before departing the United States.

Conditional Status Where Marriage is Less Than Two Years Old

All K-1 fiance cases fall under provisions of the Immigration Marriage Fraud Amendments of 1986 as the fiance(e)'s status results from a marriage that was entered into less than 24 months before permanent residence was acquired. K-3 spouse cases will also fall under these provisions if the marriage is less than 24 months old at the time that the alien spouse obtains permanent residence. Such individuals are given conditional permanent residence rather than full permanent residence. This conditional status also applies to K-2 and K-4 dependents.

The petitioner and the beneficiary must jointly file a petition to remove the condition within 90 days of the second anniversary of the alien obtaining condition permanent residence. If the petitioner and beneficiary fail to file the joint petition within the 90 day period, a waiver must be obtained in order to avoid a loss of permanent residence status. Waivers will be given only in limited circumstances. In either case, USCIS will have the opportunity to review the legitimacy of the marriage prior to removing or waiving the condition.

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