Department of State Will No Longer Process K-3 Visa Petitions Approved by U. S Immigration With Effect From February 1, 2010 (First Part)

Department of State Will No Longer Process K-3 Visa Petitions Approved by U. S Immigration With Effect From February 1, 2010 (First Part)

Lal Varghese, Attorney at Law, Dallas

Effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K -3 visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions, the nonimmigrant K visa will be administratively closed. In such an instance the application process explained below will not be applicable and cannot be used. The NVC will contact the petitioner and beneficiary with instructions for processing your IR-1 (or CR-1) immigrant visa.

If you are the spouse of a U.S. citizen you can come to the United States (U.S.) with a nonimmigrant K-3 visa much earlier than coming on immigrant visa (Green Card). If you are the child of the spouse of a U.S. citizen and your parent has been issued a K-3 visa, you can be issued a K-4 nonimmigrant visa. Both the K-3 and the K-4 visas allow you to stay in the US while your immigrant visa petition is pending. Before a K-4 visa can be issued to a child, the parent must have a K-3 visa or be in K-3 status.

A spouse is a legally wedded husband or wife. Cohabiting partners do not qualify as spouses for immigration purposes. Common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs. In cases of polygamy (having more than one spouse) only the first spouse qualifies as a spouse for immigration. U.S. law does not allow polygamy. If you were married before, you and your spouse must show that you ended (terminated) all previous marriages before your current marriage. The death and divorce documents that show termination of marriages must be legal and verifiable in the country that issued them. Divorces must be final. In cases of legal marriage to two or more spouses at the same time, or marriages overlapping for a period of time, you may file only for the first spouse.

In order to apply for K-3 visa the U. S citizen spouse must first file an immigrant Petition for Alien Relative, form I-130 for your spouse with the U.S. Citizenship and Immigration Services (USCIS) Office that serves the area where you live. The USCIS will send you a Notice of Action (Form I-797) receipt notice. This notice tells you that the USCIS has received the petition. After receiving the receipt the U. S citizen spouse must file Petition for Alien Fiancé(e), form I-129F (the same petition filed for Fiancée) for you and children with the USCIS office.

The Congress approved the K-3 visa category about 5 years ago, when there was about 2 years backlog in processing and approving an immigrant petition filed by U. S. Citizens for spouses and their unmarried children under 21. The intention of the Congress by approving the new K-3 visa category was to facilitate the process faster so that the alien spouse and children may enter United States within 90 days of the petition filing. When the K-3 visa began, the goal was attained, but subsequently when all U. S Citizens began filing K-3 petitions the backlog increased and presently USCIS is processing both the immigrant and K-3 petition by the same office and at the same time. The result is that both immigrant petition and K-3 petition is approved at the same and forwarded to the National Visa Center (NVC) for consular processing.

That is where the importance of this new rule by DOS taking places. When both the I-129F petition for a nonimmigrant K -3 visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC) at the same time, the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions, the nonimmigrant K visa will be administratively closed. The NVC normally process an immigrant visa petition within 60-90 days of its receipt and schedules an interview at the consulate. In this connection it should be remembered that NVC does all immigrant visa processing including receiving visa application fee, affidavit of support fee, visa applications, affidavit of support, tax returns with W-2s, evidence for employment etc. Once they are reviewed the NVC will request the petitioner to submit all original documents for the spouse and children like birth certificates, marriage certificates, termination of previous marriages if any, police clearance certificates from passport office and District Superintendent of Police and two passport size photos of the applicants for visas. Once they are submitted the NVC will schedule the interview at the consulate and will send the interview letter by e-mail if you have provided NVC with your and the visa applicant’s e-mail addresses. Hence, there is absolutely no sense in filing a K-3 petition for spouse and children in the light of the above new rule.

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I- 129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality. If your marriage took place in a country that does not have an American embassy, or the embassy does not issue visas, the NVC will send your petition to the embassy or consulate that normally processes visas for citizens of that country. For example, if your marriage took place in Iran where the U.S. does not have an embassy your petition would be sent to Turkey.

The spouse of an U.S. citizen applying for a nonimmigrant visa (K-3 applicant) must have an immigrant visa petition on his/her behalf by the U.S. citizen spouse. Therefore, the spouse of the U.S. citizen (the K-3 applicant) must meet some of the requirements of an immigrant visa. Embassy or Consulate will let you know any additional things to do, such as where you need to go for the required medical examination. During the interview process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer. It will be always prudent on the part of the U. S citizen to consult with an experienced immigration attorney and hire the attorney to do all processing.

The following is required: Two copies of form DS-156 (all consulates in India began accepting online DS-160 with effect from January 19, 2010) Nonimmigrant Visa Application, Police certificates from all places lived in since the age of 16, Birth certificates, Marriage certificate for spouse, Death and divorce certificates from any previous spouses, Medical examination (except vaccinations), A passport valid for travel to the U.S. and with a validity date at least six months beyond the applicant's intended period of stay in the U.S. (unless country-specific agreements provide exemptions). Two nonimmigrant visa photos, two inches/50 X 50 mm square, showing full face, against a light background), Proof of financial support (Form I-134 Affidavit of Support may be requested.) Payment of fees of $131 must be made at the consulate. There is a proposal to increase the fee to $350, which may take effect in the near future. (To be continued)

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You may visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com for more information about other related immigration matters. Contact Lal Varghese at (972) 788-0777 for 5 minutes free telephone consultation or at his e-mail at attylal@aol.com foe one time free consultation on this subject or any other immigration related matter.