K VISAS

A U.S. citizen who wants to bring his or her foreign fiancé(e) to get married and live in the U.S. must file a Petition for Alien Fiancé(e) with the United States Citizenship & Immigration Services.

To qualify for a K-1 visa, the engaged couple must meet the following conditions:
 

• One party is a U.S. citizen;
• Both parties are legally free to marry (neither party is currently married);
• In general, both parties have met in person;
• The marriage will take place within 90 days of the fiancé(e) entering the United States on the fiancé(e) visa;
• The foreign fiancé(e) has NOT been convicted of a crime and does not have a history of detentions/removal/deportations with the Department of Homeland Security, that would render him or her inadmissible to the U.S. (otherwise, the petitioner must apply for a waiver);
• The U.S. Citizen has NOT filed two or more K-1 fiance(e) petitions in the past, or has NOT had a K-1 Fiancé(e) petition approved within the past two years.  Otherwise, the U.S. Citizen must apply for a waiver.

The U.S. citizen must first file the application with the USCIS office that serves the area where he or she lives.  Unmarried children of the foreign fiancé(e) under the age of 21 may receive a derivative K-2 visa from the fiancé(e) visa petition.  Their names should be included in the petition.

After the USCIS approves the petition, it sends the petition to the National Visa Center for processing.  The National Visa Center will be charged with forwarding the petition to the U.S. embassy or consulate where the Alien fiancé(e) will apply for the K-1 visa.

K-3 Visa

A K-3 Spousal Visa allows the foreign spouse of a U.S. citizen to enter the United States on a temporary visa, while awaiting processing of his/her I-130 Immediate Relative Petition and subsequent lawful permanent residency.  Unmarried children under 21 are eligible for derivative K-4 visas through their parents’ K-3 visa petition.

The U.S. citizen must file an immigrant petition of Form I-130 with the USCIS office.  Upon receipt of the I-797 Receipt Notice, the U.S. citizen may file the K-3 visa petition with the USCIS.

Important Notice: Effective February 1st, 2010, when both the K-3 petition and the I-130 petition have been approved concurrently, the nonimmigrant K-3 visa will be administratively closed if the NVC receives both petitions at the same time.  The NVC will proceed to process only the I-130 petition.  If the NVC does not receive the I-130 petition and K-3 petition at the same time, then it will process the K-3 visa petition by contacting the U.S. Consulate with jurisdiction over the case.

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I-130:Immigration through a U.S. Citizen Sponsor:

Immediate Relatives

Immediate Relatives are generally divided into three categories: spouses, unmarried children under 21, and parents of USCs.

Preference Categories

A person is eligible to apply for a Green Card through a U.S. Citizen and/or Legal Permanent Resident relative, if he or she falls under one the following four preference categories:

First: Unmarried Sons and Daughters of Citizens (21 years of age or older)

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:
    A. Spouses and Children
    B. Unmarried Sons and Daughters (21 years of age or older)

Third: Married Sons and Daughters of Citizens

Fourth: Brothers and Sisters of Adult Citizen

I-130, Consular Processing and AOS:

Immediate relatives of U.S. Citizens are generally referred as the “VIP members” in the process of applying for legal permanent residence (LPR).  There is no numerical quota restriction on how many foreign nationals can get Green Cards as immediate relatives of U.S. Citizens.

The process for an I-130 petition is generally two-fold and depends on the physical location of the immediate relative(s).

Step One: Every petition begins with the U.S. citizen filing an I-130 petition with USCIS.

Step Two:The second step of the process depends on the foreign national’s physical location.  If the foreign national had been legally admitted to the U.S. as evidenced by the I-94 issued at the Port of Entry, he or she may concurrently file an I-485 Petition to adjust his or her status to that of LPR.

If the foreign national is outside the U.S., the U.S. Citizen must indicate that information on the Form I-130 and request the USCIS notify a U.S. Consulate in the country where his immediate relative lives.  Once the immigration petition is approved, the National Visa Center of the U.S. State Department will request further documentation from the foreign national.  After the documents are submitted, the foreign national goes to the U.S. Consulate overseas to apply for an immigrant visa.  On the day that the foreign national enters the United States on an immigrant visa, he or she becomes a legal permanent resident.

Other qualifying family members of a U.S. Citizen listed under the 1st, 3rd and 4th preference categories are also eligible to immigrate to the U.S.  Their immigrant processes begin when the U.S. citizen files an I-130 petition with the USCIS.  However, unlike the immediate relatives, they are put on the “slower lane” as they are subject to numerical limitations of immigrant visas available to these family-based immigration categories each year.  The higher the preference, the faster these qualifying family members are qualified to adjust their status in the U.S. or apply for an immigrant visa at a U.S. Consular Office.  During the wait time, the qualifying family members of U.S. Citizen must maintain a non-immigrant status or stay overseas.  Once the immigration petition is approved and an immigrant visa becomes current, they will be accorded legal permanent resident status.

Conditional Legal Permanent Resident Status:

Most alien spouses of U.S. Citizen will be initially accorded “Conditional” Legal Permanent Resident Status.  This conditional status is imposed if the alien spouse has been married to the U.S. Citizen for less than two years when they 1) enter the U.S. on an immigrant visa, or 2) adjust their status within the U.S. to LPR status.  Conditional status is also attached to the alien spouse’s children if they derive their LPR status through their parent’s marriage to a U.S. Citizen.

Within 90 days before the second Anniversary of the date the alien spouse obtained LPR status, the alien spouse and his or her U.S. Citizen spouse must file a “Joint Petition” to have the condition removed.  Upon the USCIS’ approval, the alien spouse (and his/her children) will be accorded unconditional LPR status.
If the marriage has ended in either divorce or annulment, the joint petition requirement can be waived as long as the conditional resident demonstrates that the marriage was entered in good faith.

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Immigration through a Legal Permanent Resident Sponsor:

Legal Permanent Residents may petition for his or her alien spouse and unmarried children under the age of 21, through filing a Form I-130 Petition with the USCIS.  As spouses and minor children of LPR are listed as the 2nd Preference Category, they must also wait for the immigrant visa number to become current before they may pursue legal permanent residence.  If the LPR becomes a naturalized U.S. citizen before the immigrant visa for the 2nd Preference Category is available, the I-130 petitioner may file to upgrade the petition to the category of immediate relative of a U.S. Citizen and expedite the process for his immediate family.