INS Issues Interim Rule on K Visas

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS ISSUES INTERIM RULE ON K VISAS
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The Immigration and Naturalization Service has issued an interim rule to implement the expansion of the "K" nonimmigrant visa category that was enacted as part of the Legal Immigration Family Equity Act of 2000 (LIFE Act). Historically, the K visa has allowed fiancé(e)s of U.S. citizens and their children to enter the U.S. and adjust to lawful permanent resident status. The LIFE Act expands the visa to also allow spouses of U.S. citizens and the spouses' children to enter the U.S. and work while awaiting adjustment to LPR status.

The regulations create two new subcategories of the K visa: the K-3 visa for spouses and the K-4 visa for the spouses' children. In order to be eligible for a K-3 visa, an individual must be the spouse of a U.S. citizen and must be the beneficiary of a pending Form I-130 (Petition for Alien Relative) filed by the citizen spouse. To be eligible for a K-4 visa, an individual must be unmarried, under 21 years of age, and the child of a K-3 visa-holder.

In order for a spouse to apply for a K-3 visa, the U.S. citizen spouse must complete and send Form I-129F (Petition for Alien Fiancé(e)) to:

U.S. Immigration and Naturalization Service
P.O. Box 7218
Chicago, IL 60680-7218

After the INS approves the petition, the agency will notify the U.S. consulate in the country where the marriage took place. If that country does not have a U.S. consulate, the INS will notify the consular post that has jurisdiction to issue immigrant visas for nationals of that country. If the marriage took place in the U.S., the INS will notify the consulate in the immigrant's country of residence of the approval of the petition. Once the petition has been approved, the immigrant can appear at the consulate to apply for the K-3 visa. He or she must submit a completed Form I-693 (Medical Examination) at that time.

A child applying for a K-4 visa does not need to have a separate Form I-130 or I-129F filed on his or her behalf. The child must submit a completed Form I-693 at the time of the consular appointment. While no I-130 is required for the child, the INS notes in the supplemental information to the rule that "nothing in the law prevents the U.S. citizen stepparent from filing Form I-130 for the child, and such action would be prudent and beneficial to the child." An I-130 would eventually have to be filed before the child could adjust to LPR status in the U.S.

The INS is using the Form I-129F for K-3 and K-4 applicants as a temporary measure, until such time as the agency creates a new form for this petition. The U.S. citizen petitioner should answer the questions on the form assuming that "fiancé" or "fiancée" refers to "spouse." Questions B.18 and B.19 on the newest version of the form (Mar. 29, 2001) should be omitted by marking "N/A." In question 20, the petitioner should identify the appropriate U.S. consulate in the country in which the marriage took place-or, if the marriage took place in the U.S., the immigrant spouse's place of residence. This should also be indicated on the I-130 petition.

Persons appearing at a port of entry with valid K-3 visas will be inspected and, if the INS finds them admissible, admitted to the U.S. for a two-year period. Holders of K-4 visas will be admitted for a two-year period or until the day before the child's twenty-first birthday, if that happens sooner. K-3 and K-4 nonimmigrants are not subject to the enforceable affidavit of support (I-864) requirement of section 213A of the Immigration and Nationality Act. However, according to INS they are subject to this requirement at the time they apply for adjustment or for an immigrant visa.

K-3 and K-4 nonimmigrants may apply for an extension of their stay, which will be extended in two-year increments. They will need to show that they are pursuing the immigration process. Generally, they must have filed form I-485 (Application for Adjustment of Status) or an application for an immigrant visa. Alternately, they may satisfy this requirement by showing that they are still awaiting approval of a pending I-130 petition or showing "good cause" why they have not yet applied for an immigrant visa.

According to the interim rule, K-3 and K-4 nonimmigrants are considered authorized to work incident to their status, but they are required to apply for employment authorization to obtain evidence of their work authorization. To obtain an employment authorization document (EAD), they must submit Form I-765 (Application for Employment Authorization) together with the fee (currently $100) to the same INS post office address where the I-129F is filed.

The interim rule took effect on Aug. 14, 2001. The INS invites public comments to be considered in development of a final rule. Comments must be submitted on or before Oct. 15, 2001.

66 Fed. Reg. 42,587-95 (Aug. 14, 2001).