USCIS Approves an I-130 and Drops a K3 Visa – What Happens to the Children Over 18?

By
John Buda

John Buda

Guest post by Immigration Attorney John Buda
Buda Law Group
budalawgroup@gmail.com
310-382-7349

Approvals of an I-130 after filing for a K3.  USCIS approves the I-130 and the NVC drops the K non-immigrant visa in the process.
What happens to the Children over 18?

Mr. Buda welcomes your questions in comments below.

My name is John Buda.  I am an immigration attorney practicing in Los Angeles, California.  I am writing today to help clarify a complicated and clumsy part of the immigration code that deals with K4 children over 18.

As most readers of this blog already know, a K4 visa is the “derivative” of the K3 visa that is issued to the spouse of a US Citizen.  The K3 is issued to the spouse in order to allow the spouse to travel to the United States to join the US Citizen spouse, and change their status to that of permanent resident while here in the United States.

The K4 visa is issued to the child of the foreign born spouse’s unmarried children under 21 to allow the child to accompany the parent.  The K3 K4 visas are issued as a result of the US Citizen’s filing of a I-129F petition on their behalf.  Congruent to all of this, the USCIS marriage petition, the I-130, must be filed in order for the marriage to be recognized and any visas to be issued.

The issue with the K4 is that in order for the child of the foreign spouse to receive their own permanent residency “green card” in the United States, the relationship between the US Citizen spouse and foreign spouse must be created before the child’s 18th birthday by way of marriage to the foreign spouse.  Once in the United States, the child can adjust their status from K4 to that of permanent resident up until their 21st birthday.

I-129F for K3 – K4 Will Be Closed

On February 1, 2010, the USCIS threw a wrench into the works by issuing a memo to their field offices stating that once the I-130 is approved, the need for the I-129F K3 K4 visas no longer exist, and the K3 K4 visas will be closed.  If this happens, then the foreign spouse and child are left to apply for their permanent residency in their home country through the US Embassy or Consulate.  This process can be quite lengthy.

Once the K3/K4 visa files are closed, if the K4 child is already in the United States, the USCIS states that the K4 child will accrue “unlawful presence” unless the US Citizen spouse files a separate 1-130 on their behalf to establish their own relationship to the US Citizen spouse.  Again, they can do this as long as the marriage to the foreign born spouse took place before the child’s 18th birthday.  If the marriage takes place after the child’s 18th birthday, then the child’s only option is “consular processing”.

What to do?

The best course of action is to bring the foreign born spouse and child to the United States to adjust their status here, and not wait for the US Embassy or Consulate to adjust their status.  From my experience, many things can go wrong in “consular processing” and the delays caused by mistakes take months to fix instead of weeks.  Therefore, the US Citizen spouse and their foreign born spouse must take care to file the I-129F petition for the K visas slightly ahead of the I-130 so that the USCIS can send the I-129F approved petition to the NVC (National Visa Center) BEFORE the I-130 is approved.

Will this happen exactly?  Honestly, I’m not sure.  The USCIS has issued no guidelines to define what they will do with a I-129F filed before an I-130.  Their own I-129F instructions state that you must show evidence that the I-130 has been filed.  The USCIS may process the I-129F first, or they may set the I-129F aside to wait for the I-130.  At this point, it is most likely a case by case adjudication.

Below I outline a best case scenario:

  1. Marry foreign spouse overseas before their child turns 18 years old.
  2. Go through the proper documentation steps for your foreign spouse, by filing an I-130 for her Green Card, and an I-129F for her K3 Visa to travel to the USA.  Try to file the I-129F first!
  3. Make sure that her child is listed on the I-129, so that they can travel to the USA on the K4 visa.
  4. When they all arrive in the United States, make sure that you quickly file a separate I-130 here for the child before their K4 expires.

I hope the above helps to clarify the process even if it does not supply a secure roadmap to a successful permanent residency for the foreign born child.  It is important to remember that the foreign born spouse can apply for their child to come to the United States on their own after they receive their own permanent residency.  But the wait time for this process is very long.

If you have further questions, please feel free to send me an e-mail at budalawgroup@gmail.com, or call me at 310-382-7349.

Good Luck

Legal disclaimer: John B. Buda, Esq.  The statement above is general in nature.  For your individual case, not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.

Comments

  1. M.Swain says:

    My wifes exhusband has thus far refused to allow his son to immigrate with my wife. He is on again then off again. So we moved ahead with only her application. She is nearing her interview and I was told by NVC not to include his name as someone who will follow later on DS-230s as we had not filed an I-130 for him. My question is, after my wife is in the US if her EX will agree to her son immigrating can we expect to file and have it processed in about the same time as it took my wifes visa or is he then treated as a stand alone CR-1 application that could take years to get a visa?

  2. M.Swain says:

    Sorry, I should have added he is 9 years old.

  3. Randy & Xiaoying says:

    Hi Mark, John has gone camping with his family but will be in on Monday to answer your question. Check back.

  4. Tim Robinson says:

    Hi John,

    Welcome to this group. I’ve very happy to see an immigration attorney participating in this forum. Unfortunately, I hired another attorney over a year ago who is totally unreliable and incompetent. In short, my experience with this particular attorney has been a nightmare. Hopefully, others who are beginning this process will first consult with you and benefit from your services. Thank you for your participation and best wishes to you.

    Tim

  5. John Buda says:

    M. Swain:

    Your scenario is a bit tricky. If I understand your question, and the U.S. Regulations correctly, as long as you submit the I-130 on behalf of your wife’s son, the process will take about as long as your wife’s visa. He will be classified as a CR2.

    If she submits the I-130 after she receives her green card, then the process will take many years.

    If you would like to take up the subject in a more formal manner, please feel free to call me (310-382-7349) or e-mail me at budalawgroup@gmail.com.

    Regards,

    John

Leave a Reply

CommentLuv badge