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K-3 Visa for Spouse of US Citizen

If you are a US citizen, and you are married to a foreign national living abroad, you may be able to get a K-3 visa for your spouse. The K-3 visa would permit him or her to come to the United States file an adjustment of status (green card) I-485 application. If you have questions about filing a K-3 visa application for your spouse, contact The Law Firm of Shihab & Associates to speak with our attorneys. We have more than 50 years of combined legal experience in a wide variety of complex and immigration law matters.

Is my spouse eligible for the K-3 visa?

In order for your spouse to qualify for the K-3 visa, the following criteria must be met:

  1. You must be a United States citizen;
  2. You must be married to your spouse;
  3. You must have filed a Petition for Alien Relative Form I-130 on his or her behalf that is still pending.

Make sure that your spouse comes to the United States before the I-130 petition is approved, or else your spouse will longer be able to enter the US in K visa status. This is because once the I-130 petition is approved, an immigrant visa becomes immediately available to your spouse at the Department of State through the consular office in your spouse’s is home country. Once that happens, your spouse must get a marriage-based immigrant visa for US entry.

When can my spouse apply for a green card and for work authorization?

Your spouse can immediately apply for work authorization (EAD card) and apply for a green card immediately after entering the United States.

When does the K-3 visa expire?

The K-3 visa is valid for a two year period and may be extended in two-year increments if you still have a pending I-130 petition or I-485 application. After any of the following events, your spouse’s K-3 visa status will automatically expire:

  1. If the I-130 petition is denied or revoked by the USCIS;
  2. if the I-485 application is denied by the USCIS or immigrant visa application is denied by the Department of State;
  3. Your marriage is terminated by a divorce or annulment.

Can the children of my spouse qualify for a K visa?

The K-4 visa category is available for children of your spouse if they meet the following requirements:

  1. Must be under the age of 21;
  2. Must be unmarried.

It is important to note that if the I-130 is approved before the K-4 child has entered the US, the child will not be able to immigrate to the US with your spouse. An I-130 petition should be filed for the child as well so that the child may also be eligible to adjust status to permanent resident (green card) with your spouse.

Beware of when marriage occurs after child turns 18

The child will not be eligible to get a green card as a relative of your spouse if the child reached his or her 18th birthday before you and your spouse were married, although the child will be eligible to enter the US temporarily with the K-4 visa. You cannot file an I-130 petition on behalf of the child because when the marriage occurs after the child turns 18, the child no longer qualifies as your stepchild. In order to be a stepchild, the child is required to be under 18 at the time of the marriage. If this will cause a problem, it is better to use the fiancé K-1/K-2 visa instead, and get married in the United States because under fiancé visa status, the child would be eligible for apply for a green card until age 21.

Note that this rule was challenged by the US Court of Appeals for the Seventh Circuit in the recent case of Akram v. Holder on July 9, 2013, in which the court ruled that a K-4 child is eligible for a green card even if the marriage occurred after the child turns 18 (As explained here in a subsequent article). The case covers Illinois, Indiana, and Wisconsin. Other circuit courts are not bound by this decision, but may follow suit if they choose to do so.

What if the child turns 21 before getting a green card?

The child's K-4 visa status lasts for two years or until his or her 21st birthday, whichever comes first. If you filed a I-130 petition on behalf of the child before the child turned 21, the child will still be eligible to adjust status to permanent residence (green card) under the Child Status Protection Act that protects the child from aging out. If you have questions about the K visa, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.

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