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K3 Spouse Visa, Spouse-Based Immigrant Visa, And K1 Fiance Visa

posted by DNA Identifiers @ 9:35 PM
Monday, June 22, 2009

By David Davies

Should I apply for the K1 fiance visa or the spouse visa?

This depends on many factors. If time is your foremost consideration, the K1 visa is usually quicker – often taking 9 months or less for visa issuance. If time is not the foremost factor then the spouse visa is usually the preferred option. The spouse visa is an immigrant visa that allows the foreign national spouse to enter the U.S. as a newly arriving lawful permanent resident. This is noteworthy, because the K1 fiance visa does not provide for immediate permanent residency upon admission to the U.S.

How does the K1 fiance visa work?

The K1 fiance visa is a non-immigrant visa which gives the foreign national spouse permission to apply for admission to the U.S. for the purpose of marrying their U.S. citizen spouse within 90 days of admission. The foreign national spouse entering on a K1 fiance visa is not entitled to work without separate employment authorization, nor is the K1 fiance authorized to travel outside of the U.S. In order to gain permanent resident status, the K1 fiance must affirmatively apply for adjustment of status to permanent residence upon marriage to the U.S. citizen fiance. All this must be accomplished within the first 90 days of admission into the U.S.

What is the advantage of the K3 spouse visa?

The K3 spouse visa was created to give foreign national spouses the option of coming to the U.S. as a non-immigrant spouse for the purpose of waiting for the approval of the I-130 immigrant spouse petition in the U.S. instead of abroad. In theory, the K3 visa was intended as a means for the foreign national fiance to get to the U.S. quicker, rather than waiting abroad during the lengthy petition approval process. In reality, most service centers are now processing immediate relative petitions at the same pace as the K-3 spouse petitions. For some couples, however, it may still be worthwhile to submit the K3 petition (filed on the Form I-129F).

What is the difference between the K3 spouse visa and the immigrant visa for spouses?

The K3 spouse visa is not an immigrant visa and does not convey U.S. permanent residency. Its primary purpose is to allow the foreign national spouse and derivative children under the age of 21 to travel to the U.S. for the purpose of joining the U.S. citizen spouse and avoiding lengthy wait times abroad. Once the K3 spouse arrives in the U.S. they are admitted as a K3 non-immigrant. K3 spouses must apply for employment authorization before they can work. After the underlying I-130 spouse petition is approved, then the K3 spouse may apply for adjustment of status to permanent residence. This whole process can often take several years, though it sometimes can save a couple months of living apart.

Should we get married in the U.S. or abroad?

If you and your fiance are contemplating marriage and willing to marry abroad and wait a couple of extra months for the immigrant visa, this is usually the preferred option. The primary advantage of coming to the U.S. as a married spouse, rather than a fiance, is that the foreign national spouse is able to enter the U.S. as an immigrant and is entitled to permanent residency upon arrival.

Do we need a visa attorney to help us?

Perhaps the foremost issue in immigration processing time delays is whether the couple is attempting to submit the petition and paperwork on their own, or whether they are availing themselves of the services of a qualified and U.S.-licensed attorney with experience in family-based immigration law.  Most processing time delays surface several months after the U.S. citizen petitioner has submitted the petition and then receives what is called a “Request for Evidence” (RFE) from the United States Citizenship and Immigration Services. An RFE can set your case back months, and can often be avoided by a properly prepared and documented petition at the outset. An immigration lawyer can be a great asset in this process.

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