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K-1, Marriage Visa, and K-3: What’s the Difference? | Visa Lawyers NJ

On Behalf of | Jun 1, 2016 | Common Immigration Questions and Problems, Visa Issues |

Because immigration is arguably just as esoteric and incomprehensible as the tax code, it is not surprising that there still remains a lot of confusion over K visas and marriage spouse visas. Here is a brief, but certainly not comprehensive, primer on what some key differences are:

K-1: Pros and Cons

The K-1 is a temporary visa that permits a foreign national to enter the United States to marry a United States Citizen. Generally speaking, the K-1 visa processes quicker than an immigrant marriage visa, so for many, this is the preferable route. Additionally, it is straightforward in terms of why the person is coming: there is little risk of the Department of Homeland Security misconstruing intentions, as is always a possibility when someone enters on a tourist B2 visa. Some things people may not realize, though, that the K1 is only one part of a two step process to obtain permanent residency for the foreign national. After marriage, the couple must continue the process to formally “adjust” the person’s status. In other words, approval of the K-1 is not the end of the road. Furthermore, the couple cannot marry before the individual enters the United States on the visa. Marriage beforehand will invalidate the visa, resulting in crucial time lost.

Marriage Visa: Pros and Cons

The marriage visa, loosely speaking, is the immigrant visa that one receives after the United States or Lawful Permanent resident has filed for the individual after marriage. The person will receive a visa shortly upon conclusion of an interview by a consular officer abroad. The visa will either denote CR-1 or IR-1, depending on whether conditional or permanent residence is being granted. After the individual arrives in the US, he or she will receive the actual “green card” in the mail (provided that the $165 immigrant visa has been paid). One aspect of this process that many people dislike, though, is the processing time, which can take anywhere from one to three years, depending on the status of the petitioner, immigration processing times, and visa availability. On the other hand, unlike the K-1, once the person arrives here, the initial immigration process is largely done. There is no second step that has to be done, although conditional permanent residents will still have to file for their permanent green cards before the second anniversary of admission.

K-3: Pros and Cons

Lastly, there is the K-3 visa, which can be considered a hybrid of sorts. It is a temporary visa that enables the foreign national spouse to enter the US while the immigrant process is pending. In theory, the K-3 is a wonderful mechanism that ameliorates the emotionally exhausting waiting times by reuniting the couple earlier. Once the person enters on a K-3, he or she may proceed to file the second part of the process called adjustment of status. There are a couple of provisos, though, that may not make the K-3 practical or suitable for one’s situation. For one thing, the process already assumes that the couple is married and the petitioner has already filed the I-130 Petition for Alien Relative. Therefore, this option may potentially conflict with the plans of those considering a K1 fiance visa. Another thing to consider is that spouses (and dependent children) of US Citizens are eligible to file for K-3 visas. Unfortunately, a spouse of a lawful permanent resident is not. Another practical issue is that the application for a K-3 may not be filed unless and until the I-130 is filed. Once the I-130 is approved by USCIS and forwarded to the National Visa Center, the K-3 may no longer be pursued if it hasn’t already been approved first. And more often than not, because the I-130 has to be filed first, USCIS has a head start on this application and, in our experience (though people will have different experiences), invariably approves the I-130 first.

Conclusion

As can be seen, there are many nuances that distinguish all these different types of visas. Immigration for a loved one is more complicated than filing a simple form. It entails strategic planning, patience, and a realistic understanding of the process. For specific advice on how to bring a loved fiancé or husband or wife to the United States, please contact our office.

Please remember that the foregoing is general information only. It is not intended to substitute for legal advice or create an attorney-client relationship.

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