Nonimmigrant Spousal Visa (if Married to a US Citizen) (K3)

If we got a penny for every time a potential client called us and asked us for the “fastest” way to get their spouse to the US, we would be…well, you get the point.

The wait time for a spousal immigrant visa (for those living outside of the US who are married to a US citizen) can span 2 years or longer. During this time, the couple endures a long-distance marriage, and usually the US citizen spouse travels to the foreign country to visit, unless the foreign spouse has a visa or visa waiver to enter the US and visit the US citizen spouse.

The K3 visa is a special nonimmigrant visa that allows a foreign spouse to enter the US and wait for the marriage petition to be approved, thereby shortening the time that the couple spends apart. If you are granted a K-3 visa, the Department of Homeland Security (DHS) will admit you for a 2-year period. You generally cannot change your status in the U.S. to another nonimmigrant visa category. Once the relative petition is approved, the applicant (now in the US) applies to adjust status with USCIS.

Who Qualifies for a K3 Nonimmigrant Visa?

  • The spouse must be the legal spouse of a U.S. citizen. (Spouses with U.S. green card holders do not qualify);
  • Your foreign spouse must currently live outside of the United States;
  • The U.S citizen spouse must have filed a relative petition on behalf of their spouse which is currently pending;
  • Since an immigrant petition must be filed, US citizen spouses must meet certain income requirements; and
  • Biological or adopted children (of the foreign spouse) who will also travel to the United States (on a K-4 visa) must be unmarried and under 21 years old. 

What Are the Steps to Obtaining an Nonimmigrant Spousal Visa?

This can get a bit confusing, but essentially, two petitions are filed with USCIS: 1) the relative petition; and 2) fiancé petition.  Easy enough, but here is where it gets confusing…depending on which petition gets approved first (which is totally out of your control) dictates whether the process will continue abroad or in the United States.  If the relative petition gets approved first or at the same time as the fiancé petition, then both cases are transferred to the National Visa Center (NVC) and the fiancé petition will be “administratively closed” and the case will proceed with consular processing abroad. 

If USCIS approves your Form I-130 before or at the same time as your Form I-129F, your spouse and his or her children will no longer need a K-3 or K-4 visa. This occurs in the vast majority of cases. When your spouse’s approved Form I-130 reaches the Department of State, an immigrant visa is immediately available to him or her. Your spouse and his or her children then must apply for immigrant visas and seek admission to the United States as lawful permanent residents.

Because K-3 and K-4 nonimmigrant visas are no longer available to your spouse and his or her children at this point, the K-4 child will not be able to immigrate with your spouse unless the child has an approved Form I-130 at the Department of State at that time.  So this “faster” process only works to your benefit if the fiancé petition is approved before the relative petition.

If the fiancé petition gets approved first, then the file will be transferred to the foreign consulate in the country where the couple married (it must be that country and only that country) for processing of the nonimmigrant visa.  A nonimmigrant visa application and financial sponsorship must be submitted.  The applicant will also need to undergo fingerprinting and a medical exam. At the consular interview, the applicant must answer questions regarding the marriage, provide original civil documents as well as additional marital bona fides.  If the K3 visa is issued, the applicant will be given a sealed envelope that must be given to the Customs and Border Patrol (CBP) Officer upon arrival into the United States.

Once the foreign spouse is in the United States, s/he must apply to adjust status with USCIS. So although this process takes longer to receive the actual green card, it does allow the couple to be reunited in the United States.

Is There a Visa for My Kids?

Why, yes, there is!  It’s called the K4 visa. To obtain a K-4 visa for the applicant’s children, the US citizen spouse does not need to file a separate relative petition or fiancé petition, BUT, you must list your spouse’s children on the same fiancé petition that you filed for your foreign spouse.  If you are granted a K-4 visa, DHS will admit you for a 2-year period or until the day before your 21st birthday, whichever is shorter. Your status will expire when you turn 21 years old. You generally cannot change your status in the United States to another nonimmigrant visa category.  Once in the United States, the child will need to adjust status as well.

However, if you go this route, you MUST file a separate relative petition 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. Like we said, this process is confusing and should not be undertaken without counsel.

I Entered the US on a K3 / K4 Visa. Am I Allowed to Work and Travel Internationally?

If you are admitted to the United States with a K-3 or K-4 visa, you are automatically authorized to work based on your status so you do not need a work permit, however, if you need proof of your eligibility to work, you may apply for a work permit at any time after being admitted to the U.S. Alternatively, you may file an application to adjust status and then apply for employment authorization based on that pending application even if your K-3 or K-4 nonimmigrant status expires.    

K-3 and K-4 visa holders may travel temporarily outside of the U.S. When you return from your temporary foreign travel, you may use your K-3 or K-4 visa to apply for admission to the United States. You do not need an advance parole document unless your K-3 or K-4 visa will be expired when you return to the United States and you have a pending Form I-485. In this case, the advance parole must be approved before you leave the United States.  Alternatively, you may file an application to adjust status and then apply for advance parole based on that pending application even if your K-3 or K-4 nonimmigrant status expires.    

I Entered the US on a K3 / K4 Visa. Am I Allowed to Work and Travel Internationally?

This is never advisable, but in the event of an emergency, if you entered the US on either a K-3 or K-4 visa, you may apply to USCIS to extend your status.  This request MUST be done within the 120 days before your authorized stay expires. To be eligible for an extension of stay, you must show either:

  1. That a Form I-130, a Form I-485, or an immigrant visa application is still pending; or
  2. Good cause why you did not file a Form I-485 or immigrant visa application after USCIS approved the Form I-130 filed for you.

If you have a K-4 visa, you must file your extension application together with your parent’s K-3 status extension application.  If approved, USCIS will grant extensions of stay for K-3 and K-4 visa holders in 2-year increments. NOTE that if USCIS denies the case, you will be in the US illegally and subject to deportation. 

Please, please apply to adjust status ASAP after your arrival in the United States.  We can help!  We have filed these applications within 24 hours (rush legal fee applies).

Can I Apply to Adjust Status on My Own or Do I Need to Hire Your Law Firm?

If you entered the US on a K-3 visa, your authorized stay in the United States automatically terminates 30 days after any of the following events:

  • USCIS denies or revokes the Form I-130 filed for you;
  • USCIS denies your Form I-485;
  • The Department of State denies your immigrant visa application based on Form I-130; or
  • Your marriage to the U.S. citizen petitioner ends through divorce or annulment before you become a lawful permanent resident. 

If you have a K-4 visa, your authorized stay in the United States automatically terminates 30 days after any of the following events:

  • Your parent’s K-3 status ends;
  • USCIS denies or revokes the Form I-130 filed for you;
  • USCIS denies your Form I-485;
  • The Department of State denies your immigrant visa application based on Form I-130;
  • You turn 21 years old; or
  • You marry before becoming a lawful permanent resident.

Not sure if this is the right option for you? Let us help. Contact us for a consultation.

Every day we get inquiries from potential clients who are super excited because they just married a US citizen and are wanting to “change” their status to get their “green card” and “citizenship.”  It is important to know that “changing status” is not the same as “adjusting” status. Legally speaking, one “changes status” from one temporary nonimmigrant status to another” like from B2 tourist to F1 student status.  “Adjusting” your status means that you are seeking to become a permanent resident of the United States.

The second thing to know is that unless you “acquire” or “derive” US citizenship from a US citizen parent, it’s impossible to skip “the green card stage” and jump straight to US citizenship.  In terms of the game of Monopoly, you must first “pass Go.”