Overview Of K-3 And K-4 Nonimmigrant Visas
If you are a U.S. citizen and you filed a Form I-130, Petition for Alien Relative, for your foreign spouse who is abroad, you can also file a Form I-129F, Petition for Alien Fiance(e). This is the first step for your spouse and his or her children to obtain a visa to come to the United States while you wait for United States Citizenship and Immigration Services (USCIS) to make a decision on the Form I-130.
Historically, you and your family members might have been separated for some time while waiting for a decision on your Form I-130. Congress sought to resolve this problem by creating K-3 (for spouses) and K-4 (for children) nonimmigrant visas to shorten the time your family would need to spend apart. But because USCIS now takes less time to adjudicate the Form I-130, the current need for K-3 and K-4 visas is rare.
Eligibility
If you are a U.S. citizen, your foreign spouse may be eligible for a K-3 visa if he or she:
• Is married to you;
• Is the beneficiary of a Form I-130, Petition for Alien Relative that you filed for him or her; and
• Seeks to enter the United States to await USCIS’ decision on the Form I-130.
A child of your foreign spouse may be eligible for a K-4 visa if he or she is:
• Under 21 years of age;
• Unmarried; and
• The child of the K-3 visa applicant you filed for.
Applying for The Visa
To obtain a K-3 visa for your spouse, you (the U.S. citizen) must first file two petitions with USCIS:
• Form I-130, Petition for Alien Relative: Submit Form I-130 to the correct USCIS address. You will then receive a Form I-797, Notice of Action, indicating that USCIS has received your Form I-130.
• Form I-129F, Petition for Alien Fiance(e): Submit Form I-129F to the correct USCIS address. You may file Form I-129F together with or after filing Form I-130. If you file Form I-129F after filing Form I-130, include a copy of the Form I-797, Notice of Action, to show that USCIS received your Form I-130. There is no fee if you are filing a Form I-129F for a spouse to obtain a K-3 visa.
To obtain a K-4 visa for your spouse’s children, you do not need to file a separate Form I-129F or Form I-130. You must list your spouse’s children on the Form I-129F you filed for your spouse.
Please note, however, that you must file a separate Form I-130 for your spouse’s children before they may apply for a Green Card. In order for you to create an eligible stepparent/stepchild relationship, the child must have been under 18 years of age when you and your spouse married.
If USCIS Approves Form I-130 First or at the Same Time as the Form I-129F
If USCIS approves your Form I-130 before or at the same time as your Form I-129F, your spouse and his or her children will no longer need a K-3 or K-4 visa. This occurs in the vast majority of cases.
When your spouse’s approved Form I-130 reaches the Department of State, an immigrant visa is immediately available to him or her. Your spouse and his or her children then must apply for immigrant visas and seek admission to the United States as lawful permanent residents.
Because K-3 and K-4 nonimmigrant visas are no longer available to your spouse and his or her children at this point, the K-4 child will not be able to immigrate with your spouse unless the child has an approved Form I-130 at the Department of State at that time.
If USCIS Approves Form I-129F First
If your Form I-129F petition is approved before your Form I-130, USCIS will send your petition to the Department of State. To receive a K-3 or K-4 visa, your spouse must submit a nonimmigrant visa application with the Department of State.
Your spouse does not need to submit Form I-864, Affidavit of Support when applying for the K-3 or K-4 visa but will need to provide evidence showing that he or she will not become a public charge while in the United States.
Period of Admission and Extensions of Stay
If you are granted a K-3 visa, the Department of Homeland Security (DHS) will admit you for a 2-year period. You generally cannot change your status in the U.S. to another nonimmigrant visa category.
If you are granted a K-4 visa, DHS will admit you for a 2-year period or until the day before your 21st birthday, whichever is shorter. Your status will expire when you turn 21 years old. You generally cannot change your status in the United States to another nonimmigrant visa category.
Extension of Stay
If you have either a K-3 or K-4 visa, you may submit a Form I-539, Application to Extend/Change Nonimmigrant Status to USCIS in the 120 days before your authorized stay expires. To be eligible for an extension of stay, you must show either:
• That a Form I-130, a Form I-485, or an immigrant visa application is still pending; or
• Good cause why you did not file a Form I-485 or immigrant visa application after USCIS approved the Form I-130 filed for you.
If you have a K-4 visa, you must file your extension application together with your parent’s K-3 status extension application.
USCIS grants extensions of stay for K-3 and K-4 visa holders in 2-year increments.
Employment and Travel Authorization
If you are admitted to the United States with a K-3 or K-4 visa, you are automatically authorized to work based on your status. To obtain evidence of employment authorization, you may file Form I-765, Application for Employment Authorization, at any time after being admitted to the U.S.
Alternatively, you may file an application for a Green Card and then apply for employment authorization based on that pending application even if your K-3 or K-4 nonimmigrant status expires.
Travel Document
K-3 and K-4 visa holders may travel temporarily outside of the U.S. When you return from your temporary foreign travel, you may use your K-3 or K-4 visa to apply for admission to the United States. You do not need an advance parole document unless your K-3 or K-4 visa will be expired when you return to the United States and you have a pending Form I-485. In this case, the advance parole must be approved before you leave the United States.
Applying for A Green Card
K-3 and K-4 visa holders must have an approved Form I-130 to be eligible for a Green Card to become a lawful permanent resident. You may apply for a Green Card at any time (even while the Form I-130 is pending) by filing Form I-485, Application to Register Permanent Residence or Adjust Status. If you have a K-3 visa, you may only apply for a Green Card based on your marriage to the U.S. citizen spouse who petitioned for your K-3 status.
If you have a K-4 visa, you may only apply for a Green Card based on the stepparent/stepchild relationship created when your K-3 parent married the U.S. citizen who petitioned for your K-4 visa. You may also benefit from certain age-out protections under the Child Status Protection Act (CSPA).
Conditional Permanent Residence
If USCIS approves your Form I-485, you will receive a Green Card. If you are K-3 visa holder and you have been married to your U.S. citizen spouse for at least 2 years when USCIS approves your Form I-485, your Green Card will be valid for ten years.
However, if you have been married to your U.S. citizen spouse for less than 2 years when USCIS approves your Form I-485, you and any K-4 children will become conditional permanent residents. This means that the Green Card you and your children receive will be valid for two years.
In order to remove the conditions on residence, you (and your children) and your U.S. citizen spouse must file a Form I-751, Petition to Remove Conditions of Residence in the 90 days before your Green Card expires.
Automatic Termination Of K-3/K-4 Nonimmigrant Status
If you have a K-3 visa, your authorized stay in the United States automatically terminates 30 days after any of the following events:
• USCIS denies or revokes the Form I-130 filed for you;
• USCIS denies your Form I-485;
• The Department of State denies your immigrant visa application based on Form I-130; or
• Your marriage to the U.S. citizen petitioner ends through divorce or annulment before you become a lawful permanent resident.
If you have a K-4 visa, your authorized stay in the United States automatically terminates 30 days after any of the following events:
• Your parent’s K-3 status ends;
• USCIS denies or revokes the Form I-130 filed for you;
• USCIS denies your Form I-485;
• The Department of State denies your immigrant visa application based on Form I-130;
• You turn 21 years old; or
• You marry before becoming a lawful permanent resident.
Legal Reference
For more information, see the following:
8 U.S.C. §1101(a)(15)(K)—Definition of K nonimmigrants
8 U.S.C. §1184—Admission of Nonimmigrants
8 U.S.C. §1186a—Conditional Permanent Residence
8 U.S.C. §1255—Adjustment of Status of Nonimmigrant to that of Person Admitted for Permanent Residence
8 CFR 214.2(k)—Spouses, fiancées, and fiancés of U.S. citizens
8 CFR 245—Adjustment of Status to that of Person Admitted for Permanent Residence
8 CFR 274a.12—Classes of Aliens Authorized to Accept Employment
In Texas, as in all U.S. states, the K-3 and K-4 nonimmigrant visas are governed by federal law. These visas allow the foreign spouses (K-3) and children (K-4) of U.S. citizens to enter the United States while awaiting the adjudication of their immigrant visa petitions (Form I-130). To apply for a K-3 visa, a U.S. citizen must file both Form I-130 and Form I-129F for their foreign spouse. The children of the foreign spouse can be included on the K-3 applicant's Form I-129F and do not require a separate petition, but a Form I-130 must be filed for each child before they can apply for a Green Card. If the Form I-130 is approved before or at the same time as the Form I-129F, the K-3 and K-4 visas are no longer necessary, and the spouse and children should apply for immigrant visas instead. K-3 and K-4 visa holders are admitted for a 2-year period and may apply for extensions. They are authorized to work in the U.S. and may travel temporarily outside the U.S. K-3 and K-4 visa holders can apply for a Green Card at any time, and if approved, they may become conditional permanent residents if the marriage to the U.S. citizen is less than two years old at the time of approval. The status of K-3 and K-4 visa holders can be automatically terminated under certain conditions, such as the denial of the Form I-130 or Form I-485, or the end of the marriage through divorce or annulment. The relevant legal references include 8 U.S.C. §§ 1101(a)(15)(K), 1184, 1186a, 1255, and 8 CFR parts 214.2(k), 245, and 274a.12.
