Changes to the K3 Visa – New Rules for Marriage Visa Petitioners

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U.S. Congress adopted the Life Act of 2000 for the purpose of reuniting families that could be subject to a long period of separation during the process of immigration to the United States. The result of this act of Congress was the K3/K4 visa. The K3/K4, non-immigrant visa allows spouses of U.S. citizens and the children of those spouses who are under 21 years of age and unmarried to enter the U.S. while their I-130 petition was pending.

The I-129F, filed by the U.S. spouse on behalf of a K3/K4 spouse and their children was to speed things up. Recently U.S. Citizens and Immigration Service (USCIS) has eliminated much of it’s backlog, including the I-130, reducing the process time to where some say, it takes the same time for the I-130 as the I-129F to be approved.

With the objections of some U.S. immigration attorneys, Read: (Improper Closure of I-129F Petitions by the NVC) the US Department of State issues the following public announcement:

“Effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K 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.
  • The application process explained below will not be applicable and cannot be used.
  • The NVC will contact the petitioner with instructions for processing your IR-1 (or CR-1) immigrant visa. For more information on the immigrant visa process review the Immigrant Visa for a Spouse webpage.

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”.

It is still not understood how National Visa Center (NVC), under the direction of the US State Department can administratively close the I-129F petition that has been file in cases of K3/K4 processing. Only US Congress has the authority to change law.

My Questions to Immigration Attorneys

I have been writing and asking questions of immigration attorneys to find the facts. The meat of my letters is as follows:

For myself and many readers of my blog, we agree with the objections to the U.S. Department of State (DOS) administrative closure of the K3 visa. This issue greatly affects U.S. citizens and their family members now waiting in China.

I hope to draw attention to the possible consequences of the CR or IR visa as apposed to the use of the K3 visa. There are still questions surrounding the wording by the US Department of State ” 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”. So, does this mean the K3 visa is opened or closed?

In the past, after receiving a receipt notice on the I-130, the K3 petitioner would then file the I-129F. Being they are not filed together or at the same time, what happens now?. If the I-129F gets approved first and is forwarded to the U.S. Consulate overseas, will it be dropped in the process if the I-130 gets approved later and before a foreign spouses interview?
This also brings into question the G-325A. At the bottom of this form it asks, “This form is submitted in connection with an application for: (1) Status as Permanent Resident or (2) Other. In the past for a K3, other was always answered as: Spouses K3 Visa.

What will happen now? We don’t know if (NVC) will forward an I-130 or an I-129F. Does it come down to pot luck in the hands of (NVC).

Respectfully,

Randy Marsh

The Answers I Received

  • In plain English, the answers I have received will make no changes as I have described in my book, The China Marriage and K3 Visa Guide. If NVC approves the I-129F first, your Chinese spouse will be processed for a K3 visa.
  • If the I-130 is approved first, there is no longer a need to wait for an immigrant visa to be approved. That was the purpose of the law for the K3 visa, to allow the spouse of a US citizens to enter the US while waiting for adjustment to immigrant status.
  • If the I-130 is approved first, the foreign spouse would process as a CR-1 (if married less then 2 years) or IR-1 (if married more then 2 years). The process for CR-1 and IR-1 is a bit different then the K3 visa, but it is nothing the visa applicant would be aware of, it is a different paper process on the end of the Consulate.
  • On the G-325A when filing out the question box at the bottom of the form, “This form is submitted in connection with an application for” (Other): spouses K3 Visa. If NVC drops the I-129F for the K3 because an I-130 has been approved, the NVC will contact the petitioner with instructions for processing the IR-1 (or CR-1) immigrant visa. (according to NVC ‘s public notice).
  • The Affidavit of Support is different for CR-1 or IR-1. You would use the I-864 as apposed to using the I-134 for K3/K4 applications.

How do you feel about the US Department of State’s decision to change the rules for the K3 Visa?

Categories : Marriage Visa

Comments

  1. Ron says:

    From my searching it seems the CR-1 timeline is about the same as the K-3. It does appear that filing the I-130 and then filing the I-129F for a K-3 is for the most part duplicate paperwork for the government. In addition, the CR-1 spouse receives their social security number in a matter of weeks after processing at their port of entry.
    Ron

  2. Bill Chee says:

    I have been working in China as a foreign teacher for the past five years. How will this employment status affect the document required for the Affidavit of Support?

    At the moment we are both living and working in China but would like to apply for immigration status for possible future considerations.

  3. Randy Marsh says:

    Hi Bill
    It should be no different then any other source of income. As long as your income and assets meet the minimum income requirements, they will be listed on Form I-864.

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