When married outside the U.S., your foreign spouse needs a visa to join you in the U.S. Since you are married, you are relatives. To bring your spouse to the U.S., you must file an I-130 Relative visa petition to start the process. The complete process takes approximately 2 years, so a short-cut is in order.
Most couples want a short-cut. Under the Family Act., you are permitted to file an I-129F K3 Visa petition so that your spouse does not have to wait 2 years for the I-130 Relative process to complete. The K3 Visa process takes approximately 8 months (similar to a K1 Fiance visa). If a perfect filing is accomplished. Most cases take considerably longer, but that's due to over or poor support documentation. The more info you give them, the more they have to use against your case. We prevent those problems.
The K3 (and K4) visas are nonimmigrant visas and require an Adjustment of Status to immigrant Permanent Resident after arrival in the U.S. However, the K3 (and K4) visas are good for 2 years and may be extended for another 2 years before applying for Adjustment of Status. Meanwhile, the K3 (and K3) visa holder can come and go, to the U.S. without restriction as long as the visas are valid. See benefits, and advantages of the K3 visa vs. K1 visa.
The K3 spouse and K4 visa holders may also obtain Employment Authorization (a work permit) and a social security number which allows them to seek employment, even if adjustment of status is not applied for.
NOTE: Each child must have an approved I-130 Relative visa petition in order to apply for adjustment of status. ( See CFR 8, 245.1 ~~ (2)(h)(i) )
Qualifications for filing a Spouse K3 visa petition
1) You must be a U.S. Citizen, at least 21 years of age.
2) You must be married to the beneficiary (foreign spouse).
3) You must have already filed an I-130 visa petition and have proof of doing so. Our Full Combination Spouse service includes this and adjustment / change of status.
4) You must have sufficient income to qualify for the Affidavit of Support.
Foreign spouse's eligibility:
1) Must be married to you and wish to stay married.
2) Must be of legal age to marry in his/her country AND the State in U.S. where you reside.
3) Must wish to live with you in the United States.
4) Must be able to process through the U.S. Consulate in the country
where the marriage took place. If marriage took place in the U.S., then foreign spouse must be processed through U.S. Consulate in his/her country of residence.
5) Must pass medical exam just before the interview at the U.S. Consulate.
A K3 visa (often called a marriage visa), is for getting your spouse here faster than waiting for the approx. 2 year processing of the I-130 Relative visa (required if you've married outside the U.S.).
If you marry outside the US and want to bring your spouse home, you MUST file a Relative Visa Petition (also known as CR-1, IR-1 visa, marriage visa, spouse visa or I-130 visa) for your spouse and any accompanying children. One such petition each (8 CFR 245.1). There is no getting around this. The processing time for such a visa is running between 1 1/2 to 3 years at this time. However...
...... because of the long processing time, Congress created the K3 Spouse visa ( also known as a marriage visa ) as a short-cut to get your spouse here faster. Therefore, a K3 visa (nonimmigrant marriage visa) is permitted to allow the foreign spouse (and children) to come to the U.S. to apply for adjustment / change of status in the U.S. or just visit. But the K3 petition cannot be filed until AFTER the I-130 Petition for Alien Relative visa petition is filed.
Therefore, 2 visa petitions must be filed. Children do not require a K-3 visa petition if accompanying parent. They will come with parent on a K-4 visa, derived from parent's K3 visa as long as the child is under the age of 21 and not married. In order to remain in the U.S. an adjustment of status must be applied for. Same for each child. Furthermore, an I-130 relative visa petition must also have been filed and approved for each step-child coming along on a K-4 visa.
NOTE: The I-130 Relative petition does not have to be completed while the K3 marriage visa is in process. It only needs to be approved by USCIS. It does not have to complete the process all the way to the U.S. Consulate abroad.
Benefits:
1) Significantly faster processing than the I-130 Relative (spousal) visa. The K3 visa allows him/her to await the immigrant processing in the U.S. instead of awaiting the processing of the Relative visa or marriage visa or spouse visa (same as Relative visa). Processing time is almost as fast as a fiancee visa because they are processed the same way. More details...
2) Children of spouse may come along without having been petitioned first as a relative step-child. That can be done while in the U.S. on the K-4 visa, a derivative of the parent's K-3 visa. More details...
2) You delay paying the high application fee for the adjustment of status filing, AND avoid committing to the 10 year affidavit of support liability required for adjustment of status while the K3 (and K4) visas are valid.
3) Neither spouse nor children require an Advance Parole / Reentry Permit (Travel Document) to leave and return to U.S. as often as they want. The only restriction is that they may not be out of the US for 50% or more of the time (accumulative). This is a judgment call by Customs at time of re-entry. Some allow a longer period out of the country as the law permits.
NOTE: These agents don't always follow the law!!
4) Just the psychological effect of knowing they can go back home for Grandma's funeral or someone's birthday is great in preventing homesickness from the stress of assimilation into the US. And because of the notion of freedom, many adjust faster, don't feel trapped and the marriages work out better.
The divorce rate is only 12% while it's 32% on a K-1 Fiance visa.
5) A child can come later as the mother is free to go escort the child back to the US. This is especially nice because it gives the mother a chance to assimilate first without the burden of managing a child in this foreign environment at the same time. We've noticed that mothers who bring their children on a fiance visa usually have a very difficult time making that first 60 day major adjustment period and even witnessed divorces come of it. Tempers flare because the child is asking questions the mother can't answer, and is afraid to ask you. So her stress mounts day by day and she assumes you resent the child.
K4 Visa - Children of Foreign Spouse:
The child may come along as a K4 derivative of the parent's K3 visa without a petition for the child, as long as the child is not married and under the age of 21. However....
In order that a child (now your step-child) may stay in the U.S. and become a Legal Permanent Resident, the child MUST have been under the age of 18 at the time of your marriage. In order for the child to become a Permanent Resident, an I-130 Relative visa petition must also have been filed and approved to apply for Permanent Residence.
If you did not file a separate I-130 petition for the child, the child may still come to the U.S. on the K4 visa as it is still a derivative of your spouse's K3 visa. However, in order to apply for Adjustment of Status to become a Permanent Resident, the following criteria must be met:
1) The child's K4 visa must still be valid... And
2) The child must be under that age of 21 and unmarried.... AND
3) The parent's K3 visa must still be valid.... AND
4) An approved I-130 Relative visa petition "approval" must exist.
(The latter requirement can usually be satisfied by filing an I-130 Relative visa
petition along with the Adjustment of Status application).
( See CFR 8, 245.1 ~~ (2)(h)(i) ). If either of the above requirements are not met, the child must return to his or her home country upon expiration of the K4 visa or turning 21.
NOTE: The details of the process, including methods and particulars of documenting support evidence remains part of our visa service. There's a lot more to a K3 visa than meets the eye. That information remains proprietary to Apex, but is supplied as part of the service in meticulous detail and we work with you as a team throughout the process.
We have a Spouse Combination Service package that helps you process the I-130 Relative visa petition for your spouse along with a K3 visa petition. The advantage to this is that when both are prepared at the same time, less footwork is required, time is saved and the overall processing time from filing the I-130 petition to getting spouse's K3 visa is only about 6 weeks longer than a fiancee visa. You also save money with the combination service over doing them separately.
K3 visas are what keep the divorce rate so low (12% over 10 year average). Much more detail here...
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