Marriage Visas

I-130 Petition

Anyone who wants to bring a spouse to the U.S. must first file an I-130 Petition for an Alien Relative. This applies to those who intend for their spouse to enter on the I-130 and to those who will elect to file a K-3 petition in order to shorten the waiting time for the spouse’s entry to the U.S.

K-3 Visa

Once the receipt notice for the I-130 is received (this usually takes about two weeks) a K-3 visa petition may be filed as a means to request the government to allow the spouse to enter the U.S. while the more time-consuming I-130 petition is pending. The two petitions are rather similar in terms of forms and documentation, but they have two completely separate lives as they go through processing, and there are different rules that apply to each (for example, the visa interview for an I-130 must take place in the beneficiary’s home country, whereas the K-3 visa interview must take place in the country of marriage). Although the typical I-130 visa takes about a year to process through the various government agencies (USCIS, NVC, and Embassy/Consulate), and the K-3 visa is usually approved a few months before the I-130. The beneficiary enters the U.S. on the K-3, and adjusts status to lawful permanent residence without having to leave the U.S. Entry on the I-130 does not require subsequent adjustment of status.

K-4 Children

Unmarried children under 21 years of age qualify for “derivative status” from parent, gaining the same rights as the parent from the same petition, and may travel to the U.S. with the parent upon visa issuance. However, a derivative child who was 18 or older at the time of the parent’s marriage to the U.S. citizen can NOT obtain permanent residence status in the U.S. Such children must leave the U.S. after the two year K-4 visa expires (unless they qualify for another visa, such as a student visa) and wait for the immigrant parent to gain permanent residency and be able to petition for the child. Even then, there is a several year wait for a priority number before being able to receive the visa.

Direct Consular Filing (DCF)

In some countries, an I-130 visa for a spouse may be filed directly with the US Embassy/Consulate that will interview the foreign spouse to issue the visa. This typically greatly reduces the waiting time to receive the visa, requiring in most cases less than two months from beginning to end. In such cases, the petitioning US citizen gets married overseas (or is already married) and files the same I-130 petition with the Embassy that normally is sent to the USCIS in the U.S. A CIS officer in the embassy reviews the file, and if “clearly approvable”, forwards the case to the consular section within the Embassy for interview scheduling. The US citizen does not have to remain “in country” at all after this filing takes place.

Most US embassies have strict residence requirements on the US citizen that must be met before they will accept a DCF case. A typical requirement, for example, is that the US citizen has resided continuously in the local country for six months, or has a specific level of legal residence or work status in the local country. Thus, in most countries overseas only U.S. workers or servicemen stationed overseas as a practical matter may take advantage of this highly convenient arrangement.

The various embassies change their policies with regard to DCF often (maintaining an up-to-date listing of embassy policies on the web is therefore a near impossibility) and therefore great care must be made before making marriage and travel plans before embarking on the DCF plan.

Waiting times for DCF cases that our office has filed have varied from two weeks up to four months total waiting time, with the average wait being about five weeks.

Adjustment of Status – Obtaining the “Green Card”

A person entering the U.S. on an I-130 receives his or her conditional permanent residence status at the airport or border entry point. If a spouse chooses to enter on a K-3, however, the spouse must file an I-485 Application to Adjust Status to obtain lawful permanent resident (“LPR”) and to advance their integration into American society (this procedure is also known as applying for a “green card”). The application is form and document intensive in much the same way that the I-130 and K-3 petitions are. The sponsor of the spouse must meet the somewhat stricter I-864 requirements for minimum income to support the alien. The final decision as to whether the foreign born spouse qualifies for LPR status is made by an immigration official during the adjustment of status interview. Almost all married couples are obliged to attend the interview to convince the immigration authorities that their relationship is based on real love and that they have a bona fide marriage. If you successfully pass the interview, your spouse will receive the actual green card in mail within about 30-60 days.

Work Authorization
K-3/K4 visa holders are allowed to work in the United States while the alien relative petitions are pending. Employment authorization may, as a matter of law, be provided by border enforcement at the time of entry into the U.S., but in most cases it is not, and the beneficiary must file a form I-765 application for employment authorization after entry. It’s usually a good idea to file for the employment authorization document (“EAD”) even if the beneficiary doesn’t intend to work immediately, because the EAD is often required to obtain a social security card which in turn is necessary to receive a driver’s license in most states.

Travel Privileges
The K-3 and K-4 visas are multiple entry visas, which means that there is no need to apply for any additional permission to travel outside the United States while the application for permanent residence is pending. A K-3/4 visa holder may travel outside the U.S. without worry about needing Advance Parole or other travel document to return to the U.S.

Removal of Conditions

If your spouse is granted her/his permanent resident status before you are married for two years, whether he/she arrived on a K-3 or an I-130 petition, (s)he will receive a conditional or a temporary permanent residence status. The “condition” on your spouse’s permanent residency will need to be removed later by filing an additional joint I-751 petition. The “conditional green card” is good for 2 years, and you must file your petition to remove conditions a few months before your spouse’s temporary green card expires.

Citizenship

A person who obtains LPR status by virtue of marrying a U.S. citizen is eligible to apply for U.S. citizenship three years after first obtaining LPR status (whether conditional or not) rather than the five years required by most other green card holders.
of legal residence or work status in the local country. Thus, in most countries overseas only U.S. workers or servicemen stationed overseas as a practical matter may take advantage of this highly convenient arrangement.

The various embassies change their policies with regard to DCF often (maintaining an up-to-date listing of embassy policies on the web is therefore a near impossibility) and therefore great care must be made before making marriage and travel plans before embarking on the DCF plan.

Waiting times for DCF cases that our office has filed have varied from two weeks up to four months total waiting time, with the average wait being about five weeks.

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