DOS will no longer process K-3 Visa Petitions from Feb. 1, 2010

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

Lal Varghese, Attorney at Law, Dallas

The consular officer may ask for additional information. It is a good idea to bring marriage photographs and other proof that the marriage is genuine. Documents in foreign languages should be translated. Take clear, legible photocopies of civil documents, such as birth and marriage certificates, to the visa interview. Original documents can then be returned to you. Fees are charged for the following services: Filing an immigrant Petition for Alien Relative, Form I-130, Applying for a nonimmigrant visa application processing fee, DS-156 (DS-160 online), Medical examination (costs vary from post to post), Fingerprinting fees, if required Filing Form I-485, Application to Register Permanent Residence or to Adjust Status Other costs may include translation and photocopying charges, fees for getting the documents required for the visa application (such as passport, police certificates, birth certificates, etc.), and travel expenses to the embassy or consulate for an interview. Costs vary from country to country and case to case.

For current fees for Department of State, government services please visit the web site of USCIS and Department of State. The I-129F petition is valid for four months from the date of approval. A consular officer can extend the validity of the petition (revalidate the petition) if it expires before you finish processing the visa. Children do not need separate Petition for Alien Relative, I-130 petitions, but you, the petitioner, must take care to name all your children on the Petition for Alien Fiance, I-129F petition. If you do not name the children on the petition, they may find it difficult to prove their identity as children of a K-3 applicant or person in K-3 status. You must file separate I-130 immigrant visa petitions for your children before they qualify for permanent residence. When they adjust status in the U.S., they must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS Office that serves the area where you live. Remember that in immigration law children must be unmarried and under 21 years of age.

The K-4 visa will not be denied because the child's name is not listed on the I-129F petition. As long as it can be established that he/she is the minor, unmarried child of the applicant issued a K-3 visa. As a K-3 visa holder, you can file form I-765, Application for Employment Authorization with the USCIS that serves the area where you live for an employment authorization document (work permit). Unfortunately, it is taking about 90-120 days to obtain the work permit, which means that you cannot work or even apply or social security number or even for a driver’s license or picture ID.

The length of time varies from case to case according to its circumstances. The time it takes each USCIS office and each consular office to process the case varies. Some cases are delayed because the applicants do not follow instructions carefully or supply incomplete information. It is important to give correct postal addresses, e-mail address and telephone numbers in the forms being filled out and submitted. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer. Certain conditions and activities may make an applicant ineligible for a visa like drug trafficking, overstaying a previous visa, practicing polygamy, advocating the overthrow of the government, submitting fraudulent documents, The consular officer will inform the visa applicant, if you are ineligible for a visa, whether there is a waiver of the ineligibility and what the waiver process is.

To qualify for K-4 issuance, an applicant must be the minor, unmarried child under 21 years of age of a qualified K-3 visa applicant. The U.S. citizen who files an I-129F petition for an alien spouse does not have to file a separate I-129F petition for a child of his/her spouse. These children should be listed on the I-129F petition for the spouse. While the U.S. citizen must also file an I-130 petition for the spouse, there is no requirement to file a Form I-130 immigrant visa petition on behalf of the spouse's children seeking K-4 nonimmigrant status, since K-4 is a derivative nonimmigrant classification.

The K-4 child will not be able to file for adjustment of status in the U.S. until the U.S. citizen parent/step-parent files an I-130 (immigrant petition) on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent on K-3 visa, who obtained permanent resident status may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence while in United States. But still eligible to adjust status if the immigrant parent becomes a U. S citizen, but it may take years and the child may have troubles with the status violations, obtaining driver’s license and attending colleges etc. 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.

K-3/K-4 visa holders cannot change status in the U.S. to another non-immigrant visa category. Spouses or children present in the U.S. in a K-3 or K-4 nonimmigrant visa status can travel outside of the U.S. and return using their K-3/K-4 visa since they are issued for two years duration. If they have filed for adjustment of status in the U.S. prior to departure from the U.S., USCIS will not presume that the departure constitutes abandonment of an adjustment application. Before your spouse arrives in the U.S., you can help her or him apply for a social security number card. You can also file your tax return as married filing jointly by applying for a Tax ID number with the IRS. As stated above, there are several complex process involved whether you process immigrant visa or K-3/K-4 visas for your spouse and children.

To conclude, it is worthless to file a K-3 petition for your spouse or children in the light of the above new rule by the DOS. We in our office normally do not recommend for filing a K-3 petition since both immigrant petition and K-3 petition are processed at the same service center at the same time and forwarded to the NVC at the same time. Previously, the spouse and children had the option to select K-3 processing or immigrant visa processing. But the new rule ends the option to select the visa category and continue processing. Another disadvantage in entering on K-3/K-4 visas is that they are not allowed to work or apply for social security number or apply for driver’s license or picture ID, until they receive work permit. In order to receive the work permit you must file separate application for each person and pay the fee. It will take about 90-120 days to receive the work permit under the present circumstances. More over, K-3/K-4 spouse and the children must file separate adjustment of status applications by paying additional fee and must wait about 4-6 months for interview scheduled for approval of their Green Cards.

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.