K visa – family non-immigrant visa casesby Stephanie DiPietro
Here is some information regarding K Visas. You can give me a call and we can answer all of questions about it.
Green Card for a K Nonimmigrant
The K-visa categories for fiancé(e)s of U.S. citizens and their accompanying minor children (K-1 and K-2 visas) were created to speed up the immigration process for such individuals so they could travel more quickly to the United States.
By allowing a fiancé(e) and his/her accompanying minor children to be admitted to the United States as nonimmigrants, fiancé(e)s can be spared a long separation from their intended spouse, while continuing their processing for an immigrant visa after the marriage takes place.
U.S. citizen fiancé(e)s file for their intended spouse on Form I-129F, Petition for Alien Fiancé(e).
Legal Immigration and Family Equity (LIFE) Act
The Legal Immigration and Family Equity (LIFE) Act amendments of 2000 added the K-3 visa category for foreign spouses and K-4 category for stepchildren of U.S. citizens. Due to a backlog of immigrant visa petitions (Forms I-130, Petition for Alien Relative) at that time, a long separation could occur between the overseas fiancé(e) and their intended U.S. citizen spouse. To prevent a long separation, U.S. citizens were allowed to file an additional petition on Form I-129F while their Form I-130 was pending to allow their foreign spouses and his/her minor children to come to the United States as nonimmigrants in an expedited manner.
The LIFE Act requires applicants to apply for a K-3 visa in the country where their marriage to the U.S. citizen petitioner occurred, or in the event the petitioner and applicant were married in the United States, the country of the applicant’s current residence. After arrival in the United States, they could then complete their processing for permanent residence.
All K nonimmigrants are required to file Form I-485, Application to Register Permanent Residence and Adjust Status, after arrival to adjust status as a permanent resident of the United States.
K nonimmigrants may only adjust status as a permanent resident through the same U.S. citizen (fiancé(e), spouse, or stepparent) that petitioned for them to receive their K visa status.
You may be eligible to receive a green card as a K nonimmigrant fiancé(e), spouse, or his/her minor child if you:
- Are the beneficiary of an immigrant visa petition that was filed by a U.S. citizen for their spouse or fiancé(e), or the minor children of that spouse/fiancé(e)
- Have been admitted to the United States as a K Nonimmigrant
- Met the requirement to marry the U.S. citizen fiancé(e) within 90 days of entry, if a K-1 visa holder
- Are eligible to adjust status as the spouse or child of a U.S. citizen, or the minor child of a K-1 visa holder
- Have an immigrant visa immediately available
- Are admissible to the United States
If you entered the United States as a fiancé(e) of a U.S. citizen (K-1), child of a fiancée of a U.S. citizen (K-2), or the spouse or child of a U.S. citizen (K-3 or K-4) you will have to file for adjustment of status in order to get your green card and to remain legally in the United States.
To obtain a green card, you need to file Form I-485.
If You are Present in the United States as a K-1 Fiance(e)
You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.
If You are Present in the United States as K-2, the Minor Child of a K-1 Fiance(e)
You should seek adjustment of status at the same time as your parent (K-1) since your reason to adjust, in general, depends on your parent’s eligibility to adjust. There are some special rules as to how long you can seek adjustment. Please refer to the related sections below under “Other considerations” for additional information.
If You Seek Adjustment as a K-3, Spouse of a U.S. Citizen
You may seek adjustment as soon as you enter the United States. You can only seek adjustment of status based on your marriage to the U.S. citizen spouse who also petitioned for K-3 status for you.
Note: You may obtain an extension of your K-3 status in 2-year intervals, while your adjustment of status application is pending. You should, at the same time, apply for an extension of the K-4 status for your child. Refer to 8 CFR 214.2(k)(8) for additional information.
If You Seek Adjustment as a K-4, Child of the K-3 Spouse of a U.S. citizen
You should seek adjustment of status as soon as your parent seeks adjustment of status. You can only seek adjustment of status on the basis of the marriage of your K-3 parent to his/her U.S. citizen spouse or the stepparent-child relationship this marriage caused and upon which your I-130 is based. See 8 CFR 245.1(c)(6)(ii) for additional information.
Supporting Evidence for the Form I-485
You should submit all of the following evidence and documentation with your application:
- Two passport-style photos
- Form G-325A, Biographic Information
- Copy of your government issued photo identification
- Copy of your birth certificate
- Copy of passport page with nonimmigrant visa
- Copy of passport page with admission (entry) or parole stamp
- Form I-94, Admission/Departure Record
- Evidence of your marriage to the U.S. citizen within 90 days (for K-1s)
- Form I-693, Report of Medical Examination and Vaccination Record, if applicable
- Form I-864, Affidavit of Support
- Copy of approved Form I-130 or Form I-797, Notice of Action, if Form I-130 is pending (if K-3 or K-4)
- Copies of any other approved application or waiver you have had in relation with your application for K status (Approved Form I-129F, Form I-601, Application for Waiver of Excludability, etc.)
- Applicable filing fees
Note: Those applying based on K-1 or K-2 status will not need a Form I-130 filed on their behalf. However, a K-2 stepchild may have a Form I-130, Immediate Relative Petition, filed on his/her behalf if eligible and necessary to prevent age-out concerns. Read “Other Considerations” below for further information.
If you received a medical examination prior to admission as a K nonimmigrant, then you are not required to have another medical examination at time of adjustment as long as:
- Your Form I-485 is filed within 1 year of your overseas medical examination
- The medical examination did not reveal a Class A medical condition
- If you did have a Class A medical condition, you received a waiver of inadmissibility and you have complied with the terms and conditions of the waiver
Even if a new medical examination is not required, you still must show proof that you have complied with the vaccination requirements. If the vaccination record (DS 3025) was not properly completed and included as part of the original, overseas medical examination report, you will have to have the vaccination report completed by a designated civil surgeon. In this case, you are required to submit Part 1, Information About You, Part 2, the vaccination chart, and Part 5, the Civil Surgeon’s Certification, of Form I-693 (in an envelop sealed by the civil surgeon). Please see the instructions for Form I-693 for further information.
Special Considerations When Seeking Adjustment of Status as a K-2
The Section 101(b)(1) of the Immigration and Nationality Act defines a “child” as “an unmarried person under twenty-one years of age.” Generally, a K-2 can seek adjustment of status as the minor child of a K-1. Therefore, if the K-2 adjusts status based on the K-1’s adjustment, then the K-2 can only adjust status prior to his or her 21st birthday. Several recent developments may impact a K-2s ability to seek adjustment beyond the age of 21.
If you should attain the age of 21 years while your Form I-485 is pending, you may be covered under the Child Status Protection Act of 2002 (CSPA) (see information below).
K-2/K-4 Adjustment of Status as the Step-Child of the U.S. Citizen & CSPA
In 2002, Congress passed the Child Status Protection Act of 2002 to permit an applicant for certain immigration benefits to retain the classification as a “child” under Section 101(b)(1) of the INA even if he or she reaches the age of 21. For more information, please see “Child Status Protection Act” link to the left under “Green Card Processes & Procedures.”
Limited CSPA Coverage for K-2s
An individual in K-2 status does not generally have a visa petition (Form I-130, Petition for Alien Relative) filed by the U.S. citizen petitioner, which is required in order for CSPA provisions to be applicable. Therefore, a K-2 nonimmigrant cannot utilize the CSPA when seeking to adjust status. A K-2, absent any different circumstance, may only seek adjustment until he or she reaches his 21st birthday and must adjust prior to his/her 21st birthday.
Although not required, USCIS may accept a Form I-130 filed by the U.S. citizen petitioner based on a parent-child relationship between the petitioner and the K-2 nonimmigrant (for example, when the U.S. citizen petitioner has married the K-1, and the K-2 was not yet 18 years old at that time. In this case, the K-2 is considered the step-child of the U.S. citizen under the law). This will allow an individual who once was a K-2 to adjust on the basis of being an immediate relative of a U.S. citizen, and allow him or her to utilize the CSPA when seeking adjustment of status (that is, not age out while his/her Form I-485 is pending).
Exercising this option requires:
- An existing parent-child relationship between the U.S. citizen petitioner and the K-2 nonimmigrant
- Filing of Form I-130 prior to the K-2’s 21st birthday
- Submitting all required documentation and paying the required fees associated with Forms I-130 and I-485
CSPA Coverage of K-4s
An individual in K-4 status may utilize the provisions of CSPA upon seeking adjustment of status because a K-4 nonimmigrant seeks to adjust as an immediate relative of a U.S. citizen on the basis of a Form I-130 filed by his or her U.S. citizen step parent. See 8 CFR 245.1(i) for further information.
This petition can only be filed if a parent-child relationship between the U.S. citizen and the K-4 nonimmigrant exists and the marriage between the U.S. citizen and the K-4’s parent occurred before the child’s 18th birthday. Since the K-4 child’s age “freezes” on the date the Form I-130 is filed, a K-4 benefits from the CSPA as long as the Form I-130 petition is filed before the K-4’s 21st birthday.