PETITION FOR A FOREIGN SPOUSE TO COME TO THE UNITED STATES USING K-3 VISA

The U.S. Immigration services allow a US citizen to petition for their non-citizen spouse to stay and live the United States, and ultimately to become a citizen. However, it's not as easy as filling out a couple of forms. It's not a fast process, and the outcome isn't guaranteed. With so many categories of visas available, you need to methodically review the eligibility requirements of each one to determine the best option.

What is a Spouse?

Spouse means a husband or wife. Husband or Wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the state in which the marriage was entered into or, in the case of a marriage entered into outside of any state, the marriage is valid in the place where entered into and could have been entered into in at least one state. This definition includes an individual in a same-sex or common law marriage that either: (1) was entered into in a state that recognizes such marriages; or (2) if entered into outside of any state, is valid in the place where entered into and could have been entered into in at least one state.

K-3 Visa

The K-3 nonimmigrant visa is for the foreign-citizen spouse of a United States (U.S.) citizen. This visa category is intended to shorten the physical separation between the foreign-citizen and U.S. citizen spouses by having the option to obtain a nonimmigrant K-3 visa overseas and enter the United States to await approval of the immigrant visa petition. Recipients of the said visa subsequently apply to adjust status to a permanent resident (LPR) with the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) upon approval of the petition. It should be noted that under U.S. immigration law, a foreign citizen who marries a U.S. citizen outside the U.S. must apply for the K-3 visa in the country where the marriage took place. Meanwhile, K-4 is the visa for minor children of spouses; it allows children to come to the United States with their parent who is married to a U.S. citizen. Although the K-3 and K-4 visas are classified as non-immigrant visas, they do provide their holders the ability to change their status to permanent residents in the United States and get green cards.

Application Process

To obtain a K-3 visa for your spouse, you (the U.S. citizen) must first file two petitions with USCIS:

• Form I-130, Petition for Alien Relative: Submit Form I-130 to the correct USCIS address. To find the correct address, go to the “Where to File” section on the Form I-130 page. You will then receive a Form I-797, Notice of Action, indicating that USCIS has received your Form I-130.

• Form I-129F, Petition for Alien Fiancé(e): Submit Form I-129F to the correct USCIS address. To find the correct address, go to the “Where to File” section on the Form I-129F page. You may file Form I-129F together with or after filing Form I-130. If you file Form I-129F after filing Form I-130, include a copy of the Form I-797, Notice of Action, to show that USCIS received your Form I-130. There is no fee if you are filing a Form I-129F for a spouse to obtain a K-3 visa.

To obtain a K-4 visa for your spouse’s children, you do not need to file a separate Form I-129F or Form I-130. You must list your spouse’s children on the Form I-129F you filed for your spouse.

Please note, however, that you must file a separate Form I-130 for your spouse’s children before they may apply for a Green Card. In order for you to create an eligible step-parent/step-child relationship, the child must have been under 18 years of age when you and your spouse married.

Once the approved petition has been received at the immigrant visa unit from NVC, you will receive the Instruction Package by e-mail, with a list of the documents the intending immigrant must present at the immigrant visa interview. On the interview date, a consular officer will adjudicate the application based on the visa interview and documents submitted at the interview by the applicant. The issuance or denial of the immigrant visa is up to the discretion of the interviewing officer.

Required Documentation

Foreign-citizen spouse, (and eligible children applying for K-4 visas) will be required to bring the following forms and documents to the visa interview:

• Completed Form DS-160, Online Nonimmigrant Visa Application. You (and any eligible children applying for K-4 visas) must: (1) complete Form DS-160 and (2) print the DS-160 confirmation page to bring to your interview.

• A passport valid for travel to the United States and with a validity date at least six months beyond your intended period of stay in the United States (unless country-specific agreements provide exemptions).

• Civil documents - the original(s) (or certified copies) and photocopies of the following:

-Birth certificate

-Marriage certificate for the marriage to the U.S. citizen spouse

-Divorce or death certificate(s) of any previous spouse(s)

-Police certificates from your present country of residence and all countries where you

have lived for 6 months or more since age 16. (Police certificates are also required for

accompanying children age 16 or older.)

• Medical examination.

• Evidence of financial support (Form I-134, Affidavit of Support may be requested).

• Two (2) 2x2 photographs.

• Evidence of relationship with your U.S. citizen spouse

• Payment of fees

If you are issued a K-3 visa, the consular officer will give you your passport containing the K-3 visa and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Embassy or Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States. As the K-3 visa holder, you must enter the U.S. before or at the same time as any qualifying children holding K-4 visas.

A visa allows a foreign citizen to travel to the U.S. port-of-entry and request permission to enter the United States. You should be aware that a visa does not guarantee entry into the United States. The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. Upon arrival at the port-of-entry, be prepared to present to the CBP officer your passport with visa and your unopened/sealed packet containing your documents.

A mistake can lead to unfavorable consequences for your family therefore, it is important to talk to an experienced immigration lawyer about your specific case in order to avoid any potential problems and complications. For more information on how we can assist you, please visit our website at www.elizeelawfirm.com or email us at intro@elizeelawfirm.com.

Patricia Elizee is the managing partner of the Elizee Law Firm, an immigration law firm located at 1110 Brickell Avenue, Suite 315, Miami, Florida 33131. Phone 305-371-8846