K-3 visa requirements for non-US spouses
Marrying a US citizen does not automatically confer American immigration rights on you as their spouse.
If you are the foreign spouse of a US citizen, you will need to know what visa options are available to you if you want to stay with your partner and live with them in the USA.
The following guide looks at the criteria for a K-3 visa, as well as what other options are available for spouses who are looking to move to the US.
What is the K-3 visa?
The K3 visa is a non-immigrant visa for the spouse of a US citizen. Although this will only permit you a time-limited stay in the United States, it does mean you can remain in the US pending approval of your petition by US Citizenship and Immigration Services (USCIS). Once your immigrant petition is approved, you will then be allowed to live and work in the US on a permanent basis.
The K3 visa category, in theory, is intended to shorten the physical separation between you and your US spouse, by allowing you to obtain a non-immigrant K3 visa overseas and enter the United States to await approval of your immigrant visa petition.
Having entered the United States, and obtained the necessary petition approval, you will then be required to apply to adjust your status to that of a lawful permanent resident.
K3 visa eligibility requirements
You will be eligible to apply for a K3 visa if you are the foreign spouse of a US citizen. A spouse is a legally wedded husband or wife, including same-sex spouses of US citizens.
To be eligible for a K3 visa, you will need to satisfy the following eligibility criteria:
- Be legally married to a US citizen
- Meet the requirements set in the International Marriage Broker Regulation Act of 2005
- Be the beneficiary of a pending Form I-130, Petition for Alien Relative
- Be seeking to enter the US to await USCIS’s decision on the Form I-130.
In addition, you will also need to pass other general entry requirements, such as not having any criminal convictions unless you have secured a criminal waiver, overstaying a previous visa or submitting fraudulent documents.
Can my children apply for a K-3 visa?
The children of K-3 visa applicants can accompany their foreign citizen parent to the United States under the K-4 visa.
As with the K3 visa, this will permit the minor to remain in the US whilst waiting for an outcome on their immigrant visa.
How to apply for a K3 visa
As previously indicated, the K3 visa allows you to come to the United States and wait for approval of your immigrant visa application. As such, to enable you to submit your application for a K3 visa, your US spouse must first have an immigrant visa petition filed on your behalf, albeit pending approval.
The petition will need to be filed using Form I-130, Petition for Alien Relative. This is used to establish a qualifying relationship for the purposes of a family-based permanent resident application. Upon USCIS issuance of the receipt notice for the I-130, your spouse will then need to file Form I-129F, Petition for Alien Fiancée, with the same USCIS office.
Despite the description attached to Form I-129F, in addition to being used for a foreign citizen to come to the United States to marry their US fiancé(e), it can also be used for a foreign spouse to come to the US to apply for lawful permanent resident status.
Once these petitions have been approved, they will be sent to the National Visa Center (NVC) for processing. In the event that the NVC receives the approved I-129F petition before it receives the I-130 petition, the NVC will process the I-129F petition and send this to the US Embassy or Consulate in the country where the marriage took place.
Under US immigration law you must apply for the K3 visa in the country where you got married. In the event, however, that you got married in the United States, the NVC will send the petition to the US Embassy or Consulate that issues visas in your country of nationality.
You can then use Form DS-160, Online Nonimmigrant Visa Application, to apply for your K3 visa. You will be required to undergo a medical examination and attend an interview as part of the application process. You will need to attend your interview with documentation in support of your application, including evidence of your relationship with your US spouse, and possibly even some proof that your marriage is genuine.
Only once your visa has been issued can you travel to the United States to wait for the processing of your immigrant visa. To apply for permanent resident status you will need to file Form I-485, Application to Adjust Status, with USCIS.
Alternative visa options to the K-3 visa
Where both the I-130 and the I-129 petitions have been approved by USCIS at the same time or, alternatively, when USCIS approves Form I-130 prior to Form I-129F, the need for a non-immigrant K3 visa will effectively come to an end.
In practice, K3 visa processing, on average, takes around six to nine months. This is just about as long as it takes USCIS to approve an immigrant visa application.
This means, in many cases, USCIS will approve Form I-130 as quickly as a K-3 visa. In this eventuality, you will need to wait for the NVC to contact you and your US spouse with instructions for processing your immigrant visa.
As such, because of this lengthy processing time, most people find that it may not be worth applying for a K3 visa.
By way of alternative, you may want to consider applying for either an IR1 or CR1 immigrant visa, prior to your arrival in the United States. An immigrant visa is essentially a green card, allowing you to live and work in the USA on a permanent basis.
The IR1 and CR1 visas are for qualifying relatives of US citizens. Under an IR1 visa, where IR stands for “Immediate Relative”, this will allow you to immigrate to the United States. With the CR1 visa, where CR stands for “Conditional Residency”, this will be given to you if your marriage is less than two years old, and thereafter will remain conditional for two years.
In this way, by applying for an immigrant visa prior to your arrival in the United States, you will not need to suffer the uncertainty of travelling to the US to await the outcome of your immigrant application – and you may not need to wait any longer than you would for a K3 visa.
The timings for petition processing are subject to change and are influenced by external factors such as pandemic restrictions on processing and USCIS service availability. Take professional advice to understand your options in light of current circumstances.
Work visa options
An alternative option for spouses is to apply for immigration status in their own rights and not dependent on their relationship, through a work visa, for example, an O-1 visa, L-1 visa or an H-1B visa.
The O-1 visa is for individuals with exceptional ability in their professional field, while the L1 visa is for employees of multinational employers looking to transfer from an overseas office to a US affiliated office, and the H1B visa is for graduate level employees undertaking a job role in a speciality occupation for a US employer.
Taking advice on your personal circumstances will ensure you are considering the pros and cons of all available options.
This article does not constitute direct legal advice and is for informational purposes only.