A US citizen may apply for a foreign national fiancé that he/she has met at least once in person. A K-1 visa, also known as the “fiancé visa,” can result in permanent resident status as long as the marriage takes place within 90 days of arriving in the US. K-1 visa holders are eligible to receive employment authorization. Dependent children of K-1 visa holders may accompany the visa holders under K-2 status. It is important to note that lawful permanent resident status will be granted if and only if the K-1 visa holder marries the sponsoring US citizen fiancé. Marriage to a US citizen other than the sponsor will not result in lawful permanent resident status.
“Immediate relatives”, if in the US and otherwise eligible, may apply for adjustment of status to lawful permanent residence. If not in the US, but otherwise eligible, an “immediate relative” may obtain a visa through consular processing. Spouses, parents, and children under 21 of US citizens are considered “immediate relatives” under the immigration law.
Family-Based Preference Categories:
Some family-based applicants are divided into preference categories depending on their relationship to the sponsor as well as the status of the sponsor.
Children over 21 of US citizens as well as siblings of US citizens are not considered “immediate relatives” under the immigration law and are subject to quotas as described below. Likewise, family members of lawful permanent residents, are subject to quotas under the family-based immigrant visa preference categories.
Non-immediate relative family members are subject to classification within the family-based categories. This normally means some period of waiting after the initial filing until they become eligible to either adjust status if in the US or obtain an immigrant visa if they are outside the US. The family-based categories include:
Unmarried sons and daughters (over 21 years old) of US citizens.
Spouses, children and unmarried sons and daughters of lawful permanent residents.
Married sons and daughters of US citizens.
Siblings of US citizens (over 21 years old).
Other Family-Based Visas:
K-3 & K-4 VISAS
Under the Legal Immigration Family Equality Act (LIFE Act) and its amendments, a K Visa allows the spouse and unmarried children (under 21 years old) of a US citizen to enter, live, and work in the United States as nonimmigrants until they receive lawful permanent resident status. The spouse receives a K-3 Visa and children receive K-4 visas. This visa is rarely used now because the processing time for the nonimmigrant K-3 visa is often the same or even longer than the processing time for the immigrant I-130 immediate relative petition.
ELIGIBILITY FOR A K-3 (SPOUSE) VISA
You are married to a US citizen.
Your US citizen spouse has completed and filed Form I-130 (Petition for Alien Relative) with USCIS.
You want to enter the US to await approval of the petition and become a lawful permanent resident.
The US citizen petitioner files a Form I-129F petition with USCIS with proof that the Form I-130 petition has been filed. Once approved, USCIS will send the file to the US State Department National Visa Center (NVC). After being cleared, the NVC will then forward the file to the US Consulate (which issues immigrant visas) in the country in which you were married. If you were married in the US, the approved petition must be forwarded to a consulate that has jurisdiction over the area in which you live.
ELIGIBILITY FOR A K-4 (CHILD) VISA
You are unmarried and under 21 years old.
You are the child of a foreign national who is eligible for a K-3 Visa.
The advantage of having a K-3 or K-4 non-immigrant visa is you’re allowed to work in the United States while waiting to adjust your status to lawful permanent resident.
Note: You will not have to apply for a work permit after you become a lawful permanent US resident. You will receive a permanent resident card that allows you to live and work in the US. Even if you are still waiting for permanent resident status, your valid K-3 or K-4 nonimmigrant visa allows you to travel in and out of the US.
How Do I Apply?
If you are a US citizen or a lawful permanent resident and wish to petition for family members to immigrate to the US, please visit our page: Procedure to Petition for Family Member Outside the US.
What Should I Do to Get Started?
Family-based immigration is complex. The experienced attorneys at Antonini & Cohen have dealt with virtually every possible issue arising in family-based immigration cases. Contact us for a consultation.
We know how.
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It is not intended to serve as legal advice.