Fiancé(e)/Spouse Admission (K-1/K-3)
The spouse of a U.S. citizen is immediately eligible for permanent residence upon marriage, but issues arise when a U.S. citizen’s fiancé(e) seeks to enter the U.S. prior to the wedding or when a marriage has occurred outside of the U.S. In both cases, the individual may be entering the U.S. with the intention of establishing permanent residence but without having completed the lengthy immigration process, which may take months or years to complete. Rather than requiring the fiancé(e) or spouse to wait outside the U.S. to complete processing, the law permits issuance of a nonimmigrant visa authorizing the fiancé(e) or spouse to live and work in the U.S. while awaiting adjudication of their application for permanent residency.
Fiancé(e)of a U.S. Citizen (K-1)
Where the parties are not yet married, the U.S. citizen files a petition with USCIS providing information about him or herself and his intended and his or her minor children, if any. The parties must establish that they have met in person at least once within the last two years, with an exception made for extreme hardship or where compliance would run contrary to "strict and long-established customs," e.g., where it is traditional for the bride and groom not to meet prior to the wedding. The betrothed must also demonstrate their intention and ability to marry within 90 days of the foreign fiancé(e)'s entry, and attest that it will be a bona fide marriage not entered into solely for the immigration benefit. Upon approval of the petition, the foreign fiancé(e) and his or her minor children who are coming to the U.S. as dependents will apply for a visas (K-1 for the fiancé(e) and K-2 for the dependent children), through the applicable U.S. consulate.
Note that the approved K-1 petition is valid for a four month duration. If the K-1 visa is not issued within that period of time, however, the petition may be revalidated in four month increments. Once the K-1 visa has been issued and the fiancé(e) has entered the United States, the marriage must take place within 90 days of the K-1 admission. Thereafter, the U.S. citizen spouse will file an I-130 petition on behalf of the foreign spouse, who would concurrently apply to adjust status to permanent resident based on his or her marriage to the petitioner.
Spouse of U.S. Citizen (K-3)
The spouse of a U.S. citizen may obtain a green card through either of two methods: (1) through consular processing while waiting outside of the U.S.; or (2) through an adjustment of status while residing in the U.S. in K-3 nonimmigrant status while USCIS works through processing. Choosing between these two methods requires an assessment of the facts of each case, but these days, consular processing is far faster than awaiting USCIS action on an adjustment of status.
In many countries, for example, consular processing of immediate relative visas can take as little less than a year, and the beneficiary enters the U.S. in permanent resident status with immediate work authorization incident to that status. If, instead, the spouse chooses to enter the U.S. in K-3 status, his or her U.S. citizen spouse would first have to file a petition for permanent residence (Form I-130), wait for an approval notice, and then file a separate petition for the nonimmigrant K-3 visa (Form I-129-F). The foreign spouse would have to wait outside of the U.S. up to four months for USCIS to adjudicate the K-3 petition, then wait for a consular interview, and only then enter the U.S., notably, as a nonimmigrant.
Once in the U.S., the foreign spouse may file for adjustment of status and employment authorization documents. Processing time for the green card itself may take a year or considerably more.
For the foregoing reasons, there is much to be said for consular processing where time and circumstances allow.
As noted, a K-1 petition is valid for four months from grant. It may not be extended, but may be revalidated by a USCIS District Office for another four month term if the parties reassert their intention to marry within 90 days of the foreign fiancé(e) arriving in the United States.
Admission on a K-3 visa provides an authorized stay of two years. If permanent residence adjudication has not been completed in that time, USCIS will grant extensions of stay in two year increments. If the I-130 immigrant petition has been approved, but the adjustment of status application not yet filed, USCIS may still grant an extension upon demonstration of "good cause." This might include, for example, illness, job loss of some other "catastrophic" event.
The K-3 visa will terminate without further action by USCIS upon denial of the underlying immigrant petition or adjustment application, or upon the divorce from the U.S. citizen becoming final. Note that the death of the U.S. citizen spouse may permit the adjudication to proceed.
The minor, unmarried children of an alien fiancé(e) or spouse may obtain K-2 and K-4 status, respectively. The status is dependent on the continued status of the parent and will terminate with the principal's.
Additionally, K-4 status ends when the K-4 turns 21 (unless the U.S. Citizen step-parent has filed an I-130 on their behalf) or upon the K-4s marriage if he or she marries before obtaining lawful permanent residence.
Change of Status
Neither K-1/K-2 nor K-3/K-4 beneficiaries may change to another nonimmigrant status, and nonimmigrants in other categories may not change status to K-1/K-2 or K-3/K-4.