Immigration law allows the alien spouse of a U.S. citizen and his or her minor children to be admitted to the United States as nonimmigrants while they are awaiting the adjudication of a Form I-130 Petition for Alien Relative. It also allows them to obtain employment authorization while they are waiting.
Eligibility
To be eligible for a K-3 nonimmigrant visa, an individual must:
- Be married to a U.S. citizen
- Have a pending Form I-130, Petition for Alien Relative, filed by the U.S. citizen spouse on his or her behalf
A child may be eligible for a K-4 visa if:
- He or she is unmarried, under 21, and the child of a qualified K-3 nonimmigrant visa applicant
Note: In order for a K-4 who is a step-child of a USC to immigrate as a relative of the USC step-parent (whether through adjustment of status in the United States or an immigrant visa abroad) the marriage between his or her parent and the USC must have occurred before his or her 18th birthday.
Application Process
Before applying for a K-3 nonimmigrant visa, please read and understand the limitations of the K-3/K-4 nonimmigrant visa described below.
To obtain a K-3 nonimmigrant visa for your spouse, you (the U.S. citizen petitioner) must file two petitions with USCIS on his or her behalf.
Form I-130: First, file a Form I-130 on behalf of your non-citizen spouse with the Chicago Lockbox. You will then receive a Form I-797, Notice of Action, indicating that USCIS has received the Form I-130. Note: Form I-130 does not need to be filed on behalf of the child of a K-3 beneficiary in order to obtain a K-4 visa. Form I-130 does, however, need to be filed on behalf of the child of a K-3 beneficiary in order for the child to be eligible for permanent resident status.
Form I-129F, Petition for Alien Fiancé(e): Next, file Form I-129F on behalf of your non-citizen spouse with the Dallas Lockbox after filing Form I-130. Include a copy of the I-797, Notice of Action, indicating that USCIS has received your Form I-130, on behalf of your non-citizen spouse. There is no fee when filing a Form I-129F for a non-citizen spouse (K-3). If your non-citizen spouse has any minor children seeking K-4 nonimmigrant visas, they should be listed on the I-129F filed on your spouse’s behalf.
If approved, USCIS will forward the I-129F to the U.S. Department of State for consular processing.
Then the non-citizen spouse and any minor children will then need to apply to the U.S. Department of State for the K-3 or K-4 nonimmigrant visa. For more information on the visa application process, see the “Nonimmigrant Visa for a Spouse (K-3)” link to the right.
Benefits and Limitations of K-3/K-4 Nonimmigrant Visa
The benefits of the K-3/K-4 visa include:
Once admitted to the United States, K-3 nonimmigrants may apply to adjust status to a permanent resident at any time. Upon admission to the United States, K-4 nonimmigrants may file an application for adjustment of status concurrently with or at any time after a Form I-130 has been filed on his or her behalf by the U.S. citizen petitioner.
Upon admission, K-3 and K-4 nonimmigrant visa holders may obtain employment authorization. They can obtain evidence of eligibility to work legally in the United States by filing Form I-765, Application for Employment Authorization. Upon filing an application for adjustment of status, K-3 and K-4 nonimmigrant visa holders may also apply for employment authorization based on that pending application even if the K-3 or K-4 nonimmigrant status expires.
The Limitations of the K-3/K-4 Nonimmigrant Visa
When the K-3’s I-130 reaches the Department of State, an immigrant visa is immediately available to him or her such that the he or she and his or her children are no longer eligible for K-3/K-4 nonimmigrant status, but rather must immigrate as lawful permanent residents. If the K-4 does not have an approved I-130 at the Department of State at that time, he or she will be ineligible to immigrate with the spouse of the USC.
Therefore, while there is no requirement that a separate Form I-130, Petition for Alien Relative be filed on the child’s behalf for the purposes of obtaining a K4 visa, it is advisable that the USC petitioner file a separate I-130 on the child’s behalf concurrently with the I-130 that he files for the spouse.
The Department of Homeland Security only admits K-3 or K-4 nonimmigrant visas holders for a 2-year period. K-3 or K-4 nonimmigrant visa holders may apply to USCIS for an extension of status in 2-year increments as long as the marriage-based I-130 visa petition or a corresponding application for adjustment of status or visa application is still pending adjudication.
For more information, see the “Nonimmigrant Visa for a Spouse (K-3)” link to the right.
Automatic Expiration of a K-3 Nonimmigrant Visa
A K-3 visa holder's authorized stay automatically expires 30 days after any of the following events:
- USCIS denies or revokes the Form I-130 visa petition
- USCIS denies a Form I-485 filed by the K-3 nonimmigrant or Department of State denies the immigrant visa application filed by the K-3 nonimmigrant
- Termination of the marriage through divorce or annulment
Note: A K-4’s authorized stay automatically expires when the K3’s status expires.
If Your Child Turns 21 Before Obtaining Immigrant Status
Holders of K-4 nonimmigrant visas will be admitted to the United States for 2 years or until the day before their 21st birthday, whichever is shorter. The K-4 nonimmigrant 's status will expire when he or she turns 21. If the USC petitioner filed a Form I-130 on a K-4 nonimmigrant’s behalf before the K-4 turned 21, he or she may continue to be eligible for adjustment of status under the Child Status Protection Act.
If Your Child Marries Before Being Issued an Immigrant Visa
The K-4 nonimmigrant’s status automatically expires 30 days after he or she marries.
Advance Parole for K-3 or K-4 Family Members
Applicants presently in the United States in a K-3 or K-4 nonimmigrant classification may travel outside the United States and return using their K-3 or K-4 nonimmigrant visa. The only time advance parole is necessary is if the K-3 or K-4 nonimmigrant visa has expired and the applicant has an adjustment of status application that remains pending.
Changing to Another Nonimmigrant Visa Category
K-3 or K-4 nonimmigrant visa holders cannot change status in the United States to another nonimmigrant visa category.
Affidavit of Support
Form I-864, Affidavit of Support, is not required when applying for the K-3 or K-4 nonimmigrant visa. However, the K-3 or K-4 nonimmigrant will need to furnish evidence showing that he or she will not become a public charge while in the United States. You may opt to complete Form I-134, Affidavit of Support, to help demonstrate that you will not become a public charge while in the United States. When the K-3 or K-4 nonimmigrant applies for adjustment of status, he or she will adjust status as an immediate relative, and at that time will need to file Form I-864.
K-3 or K-4 Status After Approval of an Application for Adjustment of Status
If adjustment of status is approved, the K3/K4 nonimmigrant will become a lawful permanent resident of the United States. If, at the time of approval, your marriage is less than 2 years old, the K-3 or K-4’s permanent resident status is issued on a conditional basis. You and your spouse will then be required to file a Form I-751, Petition to Remove Conditions of Residence within the 90 day period prior to the expiration date on the green card.
