Orange County Marriage Visa Attorneys
K-1 fiancé and K-3 Spousal visas will allow the U.S. citizen’s (U.S.C.) fiancé and/or spouse to enter the United States as non-immigrants. The purpose for the K-1 visa is to allow the foreign fiancé to enter the United States to marry the U.S.C. The purpose for the K-3 visa is to allow the foreign spouse to be united with the U.S citizen in the U.S. while waiting for her background check to obtain permanent residency, which could take several months, and sometimes years depending on the applicant’s nationality. Requirements for K-1 and K-3 non-immigrant visas are as follows:
To apply for a K-1 fiancé visa, the U.S. citizen must first file a petition with the USCIS in the United States on behalf of the foreign fiancé. USCIS must approve the K-1 visa and then transfer the application to the U.S. Consulate office abroad. Both the U.S. citizen and the fiancé must remain unmarried until the arrival of the foreign national fiancé in the U.S. The fiancé and U.S. citizen must have met personally at least once in the two years before the I-129F petition was filed. To apply for a K-3 non-immigrant spousal visa, the U.S. citizen spouse must file an immigrant petition for the benefit of the foreign spouse in conjunction with the K-3 visa application. The U.S. citizen spouse must file the applications and supporting documents with the USCIS and have it approved. If the marriage occurred outside the U.S., the K visa must be issued by the U.S. Consulate in the country where the marriage occurred. In both K-1 and K-3 applications, children of the beneficiary that are unmarried and under 21 years of age may also accompany the spouse. Children of the K-1 visa holder are called K-2 and children of a K-3 visa holder are called K-4.
Maintaining Non-Immigrant K Visa Statuses
There are certain requirements that the K visa holders must adhere in order to maintain their status once they arrive in the U.S. After a foreign national fiancé has obtained a K-1 visa and entered the U.S., he/she must get married to the U.S. citizen who petitioned for him/her within 90 days of admission. After marriage, the fiancé becomes the spouse. S/he may file an immigration petition and adjustment of status application or immigrant visa application to become a permanent resident. The spouse of a U.S. citizen admitted with a K-3 visa is authorized to remain in the U.S. for a period of 2 years specified on his/her Form I-94. S/he may file the immigration petition and adjustment of status application or immigrant visa application to become a permanent resident. The minor children of K-1 or K-3 visa holders will be admitted for a period of time the same as that of their parents or until the day before such child’s 21st birthday or marriage, whichever is shorter.
Work Authorization and Travel Documents
A foreign national admitted to the U.S. as a K nonimmigrant will be authorized to work after filing an I-765 application with the USCIS. To travel outside the United States, K-3/K-4 holders may travel outside of the U.S. and return using their nonimmigrant K-3/K-4 visa (if it is still valid) for a short trip, even if they have filed for adjustment of status in the U.S. prior to departure. If the visa is no longer valid, the foreign national will need a travel document prior to returning to the United States. In practice, we do not advise the client to leave the U.S. prior to obtaining the travel document, which will take from 60-90 days to obtain. Unless it is an emergency, it is generally not a good choice to leave the country prior to having a travel document when an applicant does not have a valid visa and/or a green card (which is a permanent visa for permanent residents). On the contrary, K-1 Fiancé visa holder may only use the K-1 Visa once to enter the country. After a K-1 visa holder leaves the U.S., they must obtain another visa to come back. However, this is only true prior to the date of marriage. Once the foreign national is married to the U.S. citizen, within 90 days of entering into the U.S., the U.S. citizen spouse may file a petition for alien relative and adjustment of status at the same time. In addition, the applicant can obtain a work permit and travel documents. Once they received the travel document, the applicant can leave the U.S. for a short period of time without having to obtain another visa, regardless of how long it may take for the applicant to obtain a green card. After the applicant has filed the adjustment of status application, they are required to obtain advance parole, which is similar to a travel document, before the trip abroad in order to avoid abandonment of the adjustment application.
Termination of K Visa Status
The K-1/K-2 status will be terminated when the foreign national fiancé marries someone other than the U.S. citizen who petitioned for her/him. And K-1/K-2 non-immigrants are required to leave the U.S. if the anticipated marriage does not take place within 90 days. Besides the 2-year limit for the status, K-3/K-4 nonimmigrant status will be terminated 30 days after the denial of one of the following:
- The I-130 petition filed on the foreign national’s behalf by the citizen petitioner;
- An application for an immigrant visa by the foreign national; or
- The foreign national’s I-485 adjustment of status application;
- K-2 and K-4 status will also be terminated when the foreign national turns 21 years of age or is married.
Myths About K-1 and K-3 Nonimmigrant Visas
There are many myths about K visa. The followings are some of such myths and hopefully we will be able to dispel some of the myths.
Myth 1 – A K-1 visa holder may not travel abroad once they are in the U.S.
Like most myths, this is partially based in fact, but only due to the applicant, or their attorney, misinterpreting the law. K-1 Fiancé visa holders may only use the K-1 Visa once to enter the country. After they leave the U.S., they must obtain another visa to come back. However, this is only true prior to the date of marriage. Once the foreign national is married to the U.S. citizen, within 90 days from entering into the U.S., the U.S. citizen spouse may file a petition for alien relative and adjustment of status at the same time. In addition, the foreign national can obtain a work permit and travel documents. Once they received the travel documents, the applicant can leave the U.S. for a short period of time without having to obtain another visa, regardless of how long it may take for the applicant to obtain a green card.
Myth 2 – A K-3 visa holder may not travel abroad unless an application for adjustment of status is filed on the applicant’s behalf and the applicant obtained a travel document
K-3/K-4 holders may travel outside of the U.S. and return using their non-immigrant K-3/K-4 visa (if it is still valid) for a short trip, even if they have filed for adjustment of status in the U.S. prior to departure. If the visa is no longer valid, they will need to obtain a travel document prior to returning to the United States from a U.S. Consulate abroad. In practice, we do not advise the client to leave the U.S. prior to obtaining the travel document, which will take from 60-90 days to obtain. Unless it is an emergency, it is generally not a good choice to leave the country prior to having a travel document when an applicant does not have a valid visa and/or a green card (which is a permanent visa for permanent residents).
Myth 3 – A K-1 Fiancé visa is very difficult to obtain.
All visas are very difficult to obtain. With the exceptions of a few non-immigrant visas (H-1B and L-1 visas which are considered dual-intent visas), virtually all other non-immigrant visas applied through the USCIS in the United States or through U.S. Consular offices abroad are under the presumption that the applicants have immigrant intentions. That is, the applicants have the intent to come to the United States and permanently reside there. Therefore, applicants must overcome immigrant intent presumption. To do this, the applicant must demonstrate that they do not have immigrant intent and will depart the U.S. once their temporary status expires. In some cases, such as E-1 Treaty Trader visa or E-2 Treaty Investor visas, the “temporary status” may be last for years, so long as the person maintain the non-immigrant status. Specifically for K-1 fiancé visas, the applicant does NOT need to demonstrate that they have non-immigrant intent. However, just like all other immigrant and nonimmigrant applications, K-1 visas are ripe for fraudulent applications. Thus, the applicant must overcome the suspicion of fraud. Due to this, the applicant must demonstrate certain requirements, including the number of visitations, bona fide relationship exists, and evidence of such. Thus, although it is difficult to obtain a K-1 Fiancé visa, it is no more difficult than obtaining other immigrant or non-immigrant visas. All visa applications have certain requirements and obstacles that must be overcome. Although K-1 Fiancé has its unique requirements and difficulty, it is no more difficult than other applications.
If you or someone you know is need of immigration law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.
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