The K-1 or K-3 Visa and Consular Processing: The Choice of Marriage in U.S. or Overseas

hands in love.jpgThe K nonimmigrant visas are available to fiances (K-1) or spouses (K-3) of a U.S. citizen to enter the U.S. and eventually apply for permanent residence (i.e., a green card).

This article addresses the question of which K visa is the best option. It also discusses whether the K visa is the best option when you are already married to a foreign national residing abroad. Finally, it discusses the benefits of consular processing in lieu of the K-3 visa.

The K-1 Visa
The K-1 nonimmigrant visa allows a fiance residing abroad to marry a U.S. citizen and come to the U.S. permanently. The U.S. immigration law for K-1 visas requires that you meet your alien fiance personally within two years prior to filing the K-1 visa application. Additionally, both the U.S. citizen and the foreign national must be free to marry. This involves showing that all previous marriages have been terminated. Copies of prior divorce decrees are sufficient to show freedome to marry. Dependants of the alien fiance may enter the U.S. with the K-1 visa beneficiary on a derivative K-2 visa. Dependants include minor, unmarried children of the alien fiance. A fiance may work in the U.S. by applying for a work permit with USCIS.

The K-1 fiance may stay in the U.S. for 90 days on a K-1 visa and must marry the U.S. citizen during that period. The K-1 visa cannot be extended and can only be used to enter the U.S. one time. Once married, the K-1 visa holder should immediately apply for adjustment of status to obain conditional permanent residence (i.e., a conditional green card). The green card will be conditional for two years so that USCIS knows the marriage is bona fide. 90 days before the expiration of the two-year period a petition to remove conditions must be filed.

The K-1 visa holder cannot go for consular processing, an option available to K-3 visa spouses discussed below.

The K-3 Visa
The K-3 visa allows foreign national spouses of U.S. citizens to enter the U.S. temporarily while they wait to apply for a green card. The foreign national must be married to the U.S. citizen and be residing abroad. The U.S. citizen spouse must have filed Form I-130, Petition for Alien Relative with USCIS to prove the marital relationship. Once recieved by USCIS, the K-3 visa application can be filed. Similar to the K-1 visa, minor, unmarried children of the foreign national spouse may enter the U.S. on a K-4 visa. Again your spouse may apply for a work permit once they arrive in the U.S. on a K-3 visa.

A spouse will be admitted into the U.S. for a period of two (2) years on a K-3 visa. The spouse may apply for an extension of stay no more than 120 days prior to the expiration of the K-3 visa. To obtain the extension, a K-3 visa holder must have filed the I-485 or an application for an immigrant visa, or if the I-485 was not filed, the spouse must be awaiting approval of a pending I-130; and the foreign national must still be married to the U.S. citizen.

Upon arrival in the U.S. the foreign national spouse should apply for adjustment of status to permanent resident in order to obain their green card. If any of the following circumstances happens upon arriving in the U.S. the K-3 status will terminate within 30 days: the I-130 is denied, the application for immigrant visa is denied, the I-485, Adjustment of Status application is denied, or divorce from the U.S. citizen petitioner.

Choose Between K-1 and K-3: Which Nonimmigrant Road to Travel?
There are various routes that your foreign national fiance or spouse can take to enter the U.S. Each depends on the amount of time you and your foreign fiance or spouse are willing to wait apart from each other. While the K-1 visa remains a widely used and very favorable visa category, the K-3 visa is becoming less advantageous because of the ease in which to obtain a green card through consular processing.

The fiance could enter on a B-2 visitors visa, marry the U.S. citizen, and following the wedding, apply for adjustment of status. This is the least desired route because there is a risk of being refused admission as an intending immigrant when asked by a Customs and Border Patrol (CBP) agent at the port of entry about the purpose of the visit. A B-2 visa applicant must overcome the intending immigrant presumption and entering to marry a U.S. will not overcome such presumption. Thus, you should file a K-1 visa petition in lieu of coming to the U.S. on a visitor visa because under the K-1 process, there is no risk of beign refused admission as an intending immigrant. Also, the K-1 procedure is generally quicker than the marriage abroad and subsequent K-3 visa petition process which often more time consuming.

Another option is called consular processing. The U.S. citizen and alien may marry abroad then the U.S. spouse files an immediate relative visa application after returning to the U.S. The immigrant visa (green card) petition will be filed at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the U.S. and be admitted as a permanent resident. The alternative to this procedure is to file for Adjustment of Status in the U.S. as a K-3 visa holder.

Consular processing differs from the K-3 visa in that it eliminates a step, i.e., the K-3 visa step. Approval of a K-3 petition may take two to three months and then, after it is approved, the processing of the K-3 visa at the consulate may take an additional two to four months. Then, the K-3 visa holder must apply for adjustment of status in the U.S., which can take an additional four months. Consular processing can be completed in a total of five months. A successful applicant will enter the U.S. on a green card and stay permanently! You can clearly see that consular processing has its advantages, mainly in the amount of time it takes to obtain the green card. However, many U.S. citizens want to be with their beloved spouse during the pendancy of the application. The K-3 visa allows for the spouse to enter the U.S. marginally quicker than consular processing.

If you have questions about a K-1, K-3 or consular processing immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.