The new K-3 and K-4 visas allow the spouses of US citizens who have been waiting outside the United States for permanent residence, to apply for and be admitted to the United States in temporary status to await the final determination of their green card applications. These two new visa categories, the K-3 and K-4, were created by Congress as section 1103 of the Legal Immigration Family Equity (LIFE) Act, Public Law 106-553, on December 21, 2000. They are new subclassifications of the existing K visa category. K-1 visas are for fiancées of U.S. citizens and K-2 visas are for the minor children of K-1 holders. Although the law was to take effect immediately in order to ease the burden of separation for families and couples who were waiting to enter the US for long periods of time, interim regulations have only recently been released.

K-3 Visa Eligibility. To qualify for the K-3 visa, an individual must

• be the spouse of a US citizen,
• have an I-130 Petition for Immigrant Relative pending,
• be coming to the United States to await adjudication of the final stage of immigrant processing (Adjustment of Status), and
• have filed and obtained approval of K-3 nonimmigrant classification on Form I-129F.

The I-130 petition need not have been pending for any period of time in order to allow a spouse or dependent to utilize K-3/K-4 status. Furthermore, if an I-130 petition is approved in the middle of K-3/K-4 processing, eligibility for K-3/K-4 status is not cut off in midstream. As a practical matter, however, individuals may realize that it is more convenient to complete green card processing abroad once an I-130 has been approved, rather than return to the United States and pursue the lengthier method of obtaining a green card by filing an I-485 Adjustment of Status application with INS.

K-4 Visas for Children of K-3s.

Children of K-3 visa candidates are eligible for derivative K-4 status. The child of a U.S. citizen is not eligible for K-4 status on his or her own, but only as the dependent of a K-3 spouse. However, it is important for the U.S. petitioner who has a stepchild to file an I-130 for the child despite the fact that such stepchild can enter as a K-4 with the K-3 parent. Once in the United States, the stepchild would not be able to adjust status to permanent resident, unless an I-130 had been filed on his or her behalf. It is crucial to file this paperwork on behalf of a K-4 stepchild, as the K-4 child loses his or her status when the K-3 parent becomes a permanent resident.

Consular Processing.

The only U.S. consulate abroad which may issue a K-3/K-4 visa is the one in the state in which the marriage occurred, or, if the marriage occurred in the United States, then the individual must return to process in the country of residence. There is a notable gap in legislation to address the processing of people who marry outside their country of residence but wish to return to their country of residence to be processed, rather than wait in the country where the marriage took place. This venue restriction will be problematic. Although comments were submitted to INS to correct this apparent congressional oversight, according to Ed Odom, Chief of Legislative and Regulations Division, it cannot be changed. There is an exception allowing filing in a third country if there is no issuing post abroad.

Length of Processing.

Presumably, an I-129F K-3 Petition will be processed in about 20 to 40 days, the amount of time it is taking to adjudicate K-1 fiancé petitions.

Once the consulate receives I-129F approval, it will contact the K-3 and K-4 beneficiaries to make arrangements for final visa issuance procedures. Currently, this takes about another 4-6 weeks for K-1 fiancés.

Period of Admission.

After being cleared by the consulate and receiving K-3 and K-4 status, the beneficiary is entitled to admission for a period of two years. Extensions of status are allowed in 2 year increments. Proof of ongoing pendency of applications must be submitted, as well as proof of ongoing familial relationship.

Termination of K-3 status.

Termination of K-3 status occurs automatically 30 days following denial of an I-130 relative petition or denial of an application for immigrant status. This 30 days starts after the exhaustion of any applicable appeal or time period in which one could have appealed.

3/10 Year Bar Applies.

K-3 and K-4 visa holders are not exempt from the 3 and 10 year bars, unlike the new V visa holders under the LIFE Act. Therefore, if a foreign national has previously accrued unlawful presence in the Unites States for a period of 180 days up to one year, starting April 1, 1997, he or she will be inadmissible for a period of three years. If one has accrued unlawful presence in the United States since April 1, 1997 for more than one year, he or she will be inadmissible for a period of 10 years. Of course, the bar is triggered after a departure from the United States.

Change of Status to K-3/K-4.

The K-3 and K-4 classifications are clearly designed for individuals currently outside the United States. Based on the absence of congressional language on the matter of changing status, the regulations state that nonimmigrant aliens will not be able to change from another nonimmigrant status to K status while in the United States. In general, if a US citizen's spouse and children entered the United States lawfully, they may still be eligible under existing laws to file for permanent residence while in the United States by filing an I-130 and I-485 Adjustment of Status Application during their stay.

Employment Authorization and Travel.

K-3 and K-4 beneficiaries are authorized to work, however, they will still need to file a Form I-765, Application for Employment Authorization. In order to renew employment authorization, the K-3/K-4 will have to show that the Form I-130 has been filed or that a permanent residence application has been filed.

K-3 and K-4 holders may travel outside of the Unites States and return using the K-3/K-4 visa, even if they have filed for Adjustment of Status prior to departure. There is no need to prove residence abroad and there is no presumption of abandonment of any pending permanent residence application. This is different from K-1 and K-2 fiancees and their derivatives, who must obtain Advance Parole to travel during an application for adjustment.

--Christy Lang, Northern Virginia Office