Immigration law allows the spouse of a U.S. citizen (and his or her minor children if under age 21, K-4 visa) to be admitted to the United States as nonimmigrants (temporary) while they are waiting for the processing for permanent residence to be completed. After arriving in the U.S. under K-3 status, these visa holders must apply for an immigrant visa or adjustment of status. K-3 visa holders may seek employment regardless of whether their permanent status has been approved. K-4 status is available for minor children of the foreign spouse.
When the marriage has taken place abroad, K-3 visa applicants must apply for their visas at the U.S. consulate in the country where the marriage occurred. If the petitioner is in the U.S., he or she will file from within the country and notice of approval will be forwarded to the U.S. consulate.
Please note: The unlawful presence entry bars apply. If the applicant were inadmissible on any grounds, he or she would require a waiver under section 212(d)(3)(A) and a finding that the applicant would be eligible for a waiver at the adjustment of status interview. For applicants facing inadmissibility charges, the risk of applying at a U.S. consulate is great.
Benefits and Limitations
The benefits of the K-3 visa include:
- Seeking to be admitted to the United States on a K-3 nonimmigrant visa can shorten the waiting period for non-citizen spouses to enter the United States.
- 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 (children of K-3 visa holders) may file an application for adjustment of status concurrently with or at any time after a Form I-130 has been filed by the U.S. citizen petitioner.
- Upon admission, K-3 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 nonimmigrant visa holders may also apply for employment authorization based on that pending application even if the K-3 nonimmigrant status expires.
- Unlike the K-1, the holder of a K-3 visa may travel outside of the US without first obtaining special permission (advance parole).
The limitations of the K-3 nonimmigrant visa include:
- The Department of Homeland Security only admits K-3 nonimmigrant visas holders for a 2-year period. K-3 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.
A K-3 visa holder’s authorized stay automatically expires 30 days after any of the following events:
- USCIS denies the Form I-130 visa petition
- USCIS denies a Form I-485 filed by the K-3 visa nonimmigrant holder
- The K-3 nonimmigrant visa holder decides to apply for an immigrant visa at the appropriate U.S. consulate abroad, and the consulate denies the immigrant visa application
- Termination of the marriage through divorce or annulment
- The child (K-4) of a K-3 nonimmigrant visa holder 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 visa holder’s status will expire when he or she turns 21. If the K-4 nonimmigrant visa holder has a pending application for adjustment of status, he or she may continue to be eligible for adjustment of status under the Child Status Protection Act.
- The child’s (K-4 nonimmigrant visa holder) status automatically expires 30 days after he or she marries.
Status After Approval of Permanent Residency
If adjustment of status is approved, the foreign family member will become a permanent resident of the United States. If, at the time of approval, the marriage is less than 2 years old, the K-3 permanent residence is issued on a conditional basis. Then, the filing of Form I-751, Petition to Remove Conditions of Residence within the 90 day period prior to the expiration date on the green card will be required.