K-3 AND K-4 CATEGORIES 

By:  Roman P. Mosqueda, Esq.

            You are validly married to a United States citizen abroad, who returns to the United States. 

            In the United States, your U.S. citizen spouse files an Immigrant Petition for Alien Relative (Form I-130) for you as beneficiary, and Nonimmigrant Petition for Alien Fiance(e) (Form I-129F) for K-3 status for you as spouse. 

            If the Form I-130 ($185.00 filing fee) is filed with the California Service Center in Laguna Niguel, it is currently taking up to 990 days to process this kind of petition, and the Form I-129F ($165.00 filing fee) about four months with the National Benefits Center in Missouri. 

            You apply for K-3  visa with the U.S. Consul abroad where your marriage took place, so that you can enter the United States to await the processing of the immigrant petition by the Service Center;  and pursue the immigration process through adjustment of status to lawful permanent resident. 

K-3  Category Under The Act: 

            Section 101(a)(15)(K)(ii) of the Immigration and Nationality Act establishes a K-3 visa for an alien who “has concluded a valid marriage with a citizen of the United States who is the petitioner, is the beneficiary of a petition to accord a status under Section 201(b)(2)(A)(i) that was filed under Section 204 by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa….” 

            The K-3 status became effective on December 21, 2000, under the LIFE Act, which is applicable to an alien beneficiary of a petition filed before, on or after that date. 

            The U.S. citizen spouse must file two petitions for the alien spouse abroad to be able to obtain a K-3 visa: (a) Form I-130, the petition for an immigrant visa for an immediate relative, the alien spouse, and (b) Form I-129F, petition for alien fiancé(e) used to petition the alien spouse or child to enter as K-3/K-4 nonimmigrants. 

            Form I-129F petition is filed by the United States citizen spouse with the Missouri Service Center (MSC), now renamed National Benefits Center, which will adjudicate all Form I-129F petitions for K-3 and K-4 categories, at: 

                        National Benefits Center

                        St. Louis Sub Office

                        Robert A. Young Federal Building

                        1222 Spruce Street, Room 1.100

                        St. Louis, MO 63103-2815

Children of K-3 & K-4 Category: 

            In order to qualify for K-4 visa/status, an applicant must be the minor, unmarried child under 21 years of age of a qualified K-3 visa applicant. 

            Since K-4 category is merely a derivative nonimmigrant classification, the United States citizen petitioner does not need to file separate Form I-130 and Form I-129F petitions for the children.  They are listed in the petitions for their alien parents. 

            Most K-4 status holders are step-children, not children, of the United States citizen petitioner.  And even if they are not listed in the Form I-129F petition for their alien parents, they can be issued K-4 visas, if it can be established that they are the minor, unmarried children of the K-3 visa applicants. 

            But the K-4 child cannot adjust status in the United States until the United States citizen parent or step-parent files a Form I-130 petition for the child. 

            If the United States citizen parent or step-parent does not file the Form I-130 petition for the child, his/her alien parent may do so after adjustment of status under the 2A Family Preference category. 

            But once their alien parent loses his/her K-3 status, the child automatically loses his/her K-4 status. And K-4 status terminates when the holder reaches 21 years of age. 

Processing of K-3 and K-4 Visas: 

            After the National Benefits Center approves the Form I-129F petition, it forwards the file to the National Visa Center, which does the National Crime Information Center (NCIC) check. 

            If the K-3/K-4 person clears the criminal check, the Form I-129F  petition with its approval is electronically sent to the Consular post, which shall communicate with the alien applicant through a letter (Packet 3), stating the documentary requirements and location for medical examination. 

            The required documents for K-3 and K-4 visa processing are: 

1.      2 copies of the DS-156 application form; 

2.      local police certificate; 

3.      birth certificate for each K-3 and K-4 visa applicant; 

4.      local marriage certificate for the principal K-3 applicant; 

5.      divorce/death certificates; 

6.      standard immigrant visa medical examination except vaccination; and 

7.      valid passport. 

Form I-864, Affidavit of Support, is not required for K-3 and K-4 visa applications, but Form I-134, Affidavit of Support for nonimmigrant visas, may be deemed appropriate by the Consular Officer. 

            The machine readable visa (MRV) fee per K-3 and K-4 applicant is $100.00 

K-3 and K-4 Statuses: 

            K-3 and K-4 visa holders are admitted to the United States for a two-year period, which may be extended in two-year intervals, or until the K-4 holders’ 21^st birthday,  provided that the Form I-130 petition or Form I-485 ($315 filing fee), adjustment of status application,  has not been approved. 

            A K-3 and K-4 alien may apply for extension of stay on Form I-539 ($195 filing fee).  Extension for K-4 status must be filed concurrently with the parent’s K-3 extension application. And Form I-130 must be filed on behalf of the K-4 alien seeking extension. 

            If the Form I-130 has been approved, an extension of the K-3 or K-4 status may be granted, if an adjustment of status application has been filed, or good cause shown why the alien status holder has not done so. 

            Good cause consists of illness, job loss or catastrophic event that has prevented the filing of the adjustment of status application. 

            K-3 and K-4 status holders cannot change status in the United States to another nonimmigrant status.  And another nonimmigrant status holder cannot change to K-3 or K-4 status. 

            K-3 and K-4 status holders are entitled to employment authorization upon application on Form I-765  ($175 filing fee).  They may travel outside of the United States and re-enter using their K-3 or K-4 visa,  without obtaining advance parole. 

            And even if they have filed their application for adjustment of status prior to departure from the United States, their departure shall not be presumed to constitute abandonment of their adjustment application. 

            Lastly, a K-3 status holder cannot adjust status except on the basis of the marriage to the same United States citizen who had petitioned for the K-3 status holder. 

            Thus, the K-3 or K-4 status automatically terminates thirty (30) days following the occurrence of any of the following: (a) denial or revocation of the Form I-130 petition or approval; (b) denial or revocation of the immigrant visa or adjustment of status application or approval; (c) divorce of the K-3 status holder and the U.S. citizen spouse; (d) marriage of the K-4 status holder; and (e) denial of K-3 status/extension which terminates K-4 status. 

            Otherwise, K-3 and K-4 categories foster family unity in the United States.