State Department Cable Re: INS K-3 Regulations

R 270204Z SEP 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
DUSHANBE POUCH
FREETOWN POUCH
BELGRADE POUCH
LAHORE POUCH
NDJAMENA POUCH
PESHAWAR POUCH
PRISTINA POUCH
UNCLAS STATE 167548

E.O. 12958: N/A
TAGS: CVIS, KSEP
SUBJECT: K3 VISA IMPLEMENTATION

REF: A) STATE 057338 B) FEDERAL REGISTER VOL. 66, NO.
174, SEPTEMBER 7, 2001

1. This has been cleared by M/SEP.

2. Summary: INS published a rule in the Federal Register
to implement the new K3 NIV. To obtain K3 status for an
alien spouse, a U.S. citizen petitioner must first file an
I-129F petition with INS in the United States.
Confirmation of INS approval of the I-129F petition is
required before a K3 may be issued and will be relayed to
overseas posts by NVC. K3 processing overseas will
closely mirror that of K1 fiance processing. If the
marriage occurred abroad, a K3 must be issued in the
country where the marriage took place. Action requested
in Paragraph 10.

——————————
The INS Rule – K3 Requirements
——————————

3. Published on August 14, 2001 in the Federal Register,
the INS rule outlines requirements for obtaining K3
nonimmigrant classification and maintaining status in the
United States:

A. The alien must be married to a U.S. citizen who has
filed an I-130 petition for an immigrant visa (IR1) on
behalf of the alien.

B. The U.S. citizen petitioner must also file a second
petition, the I-129F, with INS for a non-immigrant visa
(K3) on behalf of the alien spouse. The I-129F must be
filed in the United States. This second petition must be
approved by INS before the alien can begin K3 visa
processing overseas. The K3 visa must be issued in the
country where the marriage took place, if the marriage
occurred outside of the United States.

C. The alien must be seeking to enter the United States
to await “the availability of an immigrant visa.” While
visa numbers are of course not limited for spouses of U.S.
citizens, the INS rule requires an alien who enters the
U.S. as a K3 to continue to pursue the immigration process
by having an I-130 petition or an adjustment of status
pending approval by INS. To ensure that K3s are actively
pursuing immigration, INS will grant only a two-year
admission period when the K3 enters the United States.
Similarly, work authorization will be granted in two-year
increments.

———————————-
Requirements for K4 Classification
———————————-

4. To qualify for K4 issuance, an applicant must be the
minor, unmarried child under 21 years of age of a
qualified K3 applicant. The INS rule notes that the U.S.
citizen who files an I-129F petition for an alien spouse
does not have to file a separate I-129F petition for a
child of that spouse. These children are to be listed on
the I-129F petition for the spouse.

5. While the U.S. citizen must also file an I-130
petition for the alien spouse, there is no requirement “to
file a Form I-130 immigrant visa petition on behalf of the
aliens children seeking K4 nonimmigrant status, since K4
is merely a derivative nonimmigrant classification,”
according to the INS rule. K4s are dependent on K3s for
their status.

6. However, as the INS rule explains, the K4 child will
not be able to file for adjustment of status in the United
States until the U.S. citizen parent/step-parent files a
I-130 on behalf of the child. If the U.S. citizen
parent/step-parent never files the I-130 petition, the
immigrating parent may do so once he/she has obtained LPR
status, but the child would have to wait for an available
visa number. Finally, according to the INS rule, as the
immigrating parent, upon adjusting status, “would no
longer be in K-3 status, the child would no longer be in
lawful K-4 status, since this is merely a derivative
classification”, and that child would begin to accrue
unlawful presence. As the K3/K4 may not change status in
the United States to another NIV category (see below), the
continued lack of an I-130 petition will eventually create
adjustment of status problems for the K4. K4s who do not
meet the definition of stepchild in INA 101(b)(1)(B)
because the stepchild relationship was not established
before the stepchilds 18th birthday will face the same
problem K2 derivative children of fiances have long
encountered, i.e., the U.S. citizen spouse will be unable
to file the I-130 petition on their behalf. In these
cases, the K3 will have to file the petition when he/she
obtains LPR status.

——————————————————
The K3 Application Process Begins with INS in the U.S.
——————————————————

7. U.S. citizen petitioners must file an I-129F petition
with INS to initiate overseas processing of a K3. The I-
129F is the same petition that is used to file for fiance
visas. Petitioners should be directed to INS for further
information on filing an I-129F for K3 status. INS has a
Website at: HTTP://uscis.gov.

8. As is the case for fiance visa petitions, the I-129F
must be approved by INS in the United States. Neither
consular officers nor INS offices overseas are delegated
the authority to approve these petitions.

—————————————————–
INS Forwards Approved I-129F Petitions for K3s to NVC
—————————————————–

9. INS has a new Service Center designed to handle the
LIFE Act visas, both V and K3. The new Missouri Service
Center (MSC) will adjudicate all I-129F petitions for K3
visas. INS will note the country of marriage in the
“Remarks” section of the I-129F. Once a petition is
approved, MSC will forward the paper case file to NVC as
well as the usual electronic data file.

———————————————-
NVC Forwards 129F Petitions Approvals to Posts
———————————————-

10. NVC will electronically enter the case into IVIS,
manually enter the country of marriage, and do the NCIC
check. When the case clears the NCIC check, NVC will
rubberstamp the lower left of the I-129F petition with the
notation “NCIC Cleared.” NVC will then scan both sides of
the I-129F petition and e-mail the case to the post in the
country of marriage noted on the petition. If a case
instead results in an NCIC “hit,” NVC will mark “NCIC Hit”
in the lower left corner of the petition and will e-mail
to post a copy of the “hit sheet” with the scanned
petition. Posts must then follow the usual fingerprinting
procedures.

11. ACTION REQUESTED: As soon as possible, all K3 issuing
posts must send an e-mail message to Sandra Shipshock at
NVC listing the e-mail address(es) at post to which K3
petitions may be sent from NVC. Posts should create a
separate K3 e-mail inbox for receipt of these petitions,
or if this is not possible, list several consular staff
members as recipients.
12. For IV-issuing posts, NVC will also e-mail K3 files
for loading into posts IV application. Non-IV-issuing
posts will have only the NIV system in which to manually
enter data for actual visa issuance and will likely need
to maintain paper files for 221g refusals.

13. NVC will not send K3 applicants a letter explaining
K3 eligibility as is currently done for V applicants.

14. NVC will retain the I-129F for two years before
shredding it.

——————–
Place of Application
——————–

15. Most K3/K4 visas will be issued by the IV-processing
post in the country. However, as K3/K4 visas must be
issued in the country where the marriage to the U.S.
citizen took place, some non-IV-issuing posts in regions
where IVs are centralized in a post outside the country
must be prepared to process these new NIVs.

16. For those wed in countries where there is no U.S.
visa-issuing post, K3/K4 applicants will be instructed to
apply at the consular post designated to handle “homeless”
IV cases for nationals of that country.

17. Alien spouses wed to a U.S. citizen in the United
States should apply in their country of residence, if they
are overseas, which is also the rule regarding the place
of application for K1 fiance visas. If they are already
in the United States, they may apply to INS for an
adjustment of status to LPR, see paragraph 36 below.

——————————-
Post Processing of K3 applicant
——————————-

A. Notification/Packet 3:

18. Once post receives the scanned I-129F petition from
NVC, post should send the beneficiary a letter developed
by post that outlines documentary requirements for K3 and
K4 issuance, instructions on where to undergo the required
medical exam, and how to notify post (by mail or
telephone) when they are “documentarily” prepared for an
interview with a consular officer. Names of eligible K3
applicants will not be added to CLASS; proof of
eligibility is the approved I-129F petition from NVC.

B. Personal Appearance:

19. K3s are NIVs, and as such, an interview with a
consular officer is not necessarily required. Many posts
are successfully issuing V NIVs using the “Interview by
Exception” method, see Reftel A, para 41.

C. Required Documents:

20. Documents required for K3/K4 processing are similar
to those needed for K1 fiance processing and will include
two copies of the DS-156 application form (no supplemental
form was deemed necessary for K3s as is the case for the
Vs), local police and birth certificates for each K3/K4
applicant, local marriage certificate for the principal
applicant and divorce/death certificates for any previous
marriages, and the standard IV medical exam minus
vaccinations. A K3 applicant needs a valid passport. K4
applicants must have their own passport issued in their
name or be included in the K4 parents passport.

D. Medical Exam:

21. K3/K4 applicants must undergo the standard IV medical
exam performed by posts panel physician using the
standard IV medical forms (DS-2053 and associated
worksheets). As is the case for K1 applicants, K3/K4s are
not required to submit proof of vaccinations until they
adjust status with INS. Any post that does not have a
formal signed contract with a local panel physician should
contact CA/VO/F/P – Laurie Trost.

E. Public Charge:

22. K3/K4 applicants are not subject to the I-864
Affidavit of Support requirements at the time of K3
application; they will be required to submit one when they
adjust status to LPR in the U.S. with INS. Neither do K3s
require the I-134 Affidavit of Support, although the
consular officer may request one when deemed appropriate.
While a K3/K4 applicant is subject to Section 212(a)4,
he/she must only convince the consular officer that he/she
will not be a public charge in the United States. As with
V processing, consular officers have the discretion to
make a determination on the likihood of an applicant
becoming a public charge based on whatever information is
presented at the time of application.

D. Marriage Bona Fides

23. The INS rule states that “any finding by the Service
that a fee or other consideration was given for the
purpose of filing the relative visa petition or the
petition to obtain K nonimmigrant status for a spouse
results in termination of the K status and the alien being
placed in removal proceedings.” Consular officers should
attempt to determine eligibility using information
presented at the time of application.

——————-
Post Issuance of K3
——————-

24. Like the K1 fiance visa, the K3 will be issued as an
NIV, and post will prepare a packet of documents for the
applicant to present to INS including a copy of the
scanned I-129F petition received from NVC, one of the DS
156 application forms, medical exam, marriage, birth and
police certificates. No financial support documents are
required in the packet. Documents supporting issuance to a
minor child of the K3 should be included in the K3s
packet. This is unlike current procedures for V issuance
where post is not required to prepare a packet of
documents to accompany the V visa issuance.

———————————-
Timely Processing of K3 Applicants
———————————-

25. The LIFE Act created the K3 and the V categories to
bypass administrative processing delays that cause long
separation of families. K3s are immediate relatives of
U.S. citizens. Posts should keep in mind that the intent
of the K3 is speedy reunification of U.S. citizen
families.

——————————-
Validity of the I-129F Petition
——————————-

26. The I-129F petition is valid for four months from the
date of INS approval. If the petition has expired, the
consular officer may revalidate the petition for an
additional four months with a notation “revalidated to
(date)” in the “Remarks” block on the petition over the
signature and title of the consular officer. The date of
revalidation should also be noted.

—-
Fees
—-

27. Only the $45.00 MRV fee will be charged per
applicant. Like the K1 and the V visas, there are no
reciprocity fees beyond the flat MRV fee.

———————–
Validity of K3/K4 Visas
———————–

28. Posts will issue multiple entry/2-year validity K3/K4
visas. Visa validity for K4s who will age out must be
limited to the day before the K4 applicant reaches his/her
twenty-first birthday. K3/K4 visas must also be limited
for those nationals for whom security concerns indicate a
shorter validity period is necessary.

—————
Ineligibilities
—————

29. Applicants are subject to all ineligibilities.
Unlike the applicants for V visas, the LIFE Act does not
exempt K3/K4s from INA section 212(a)(9)(B). K3/K4
applicants are subject to the 3-year bar if they accrued
more than 180 days of unlawful presence in the United
States, and to the 10-year bar if they accrued one year or
more of unlawful presence. However, they are eligible to
apply for a waiver.

—————————————————–
May IR1 Petition Beneficiaries Opt for K3 Processing?
—————————————————–
30. According to the LIFE Act, a K3 visa may be issued
when “an immigrant visa is not immediately available to
the alien.” To maximize the number of aliens who may
benefit from the LIFE Act provisions, VO has determined
that an immigrant visa is “available” only when the actual
approved I-130 petition has been received by the IV-
issuing consular post. If the I-130 petition is at post,
or the applicant has already been interviewed and denied
the IR1 by a consular officer, perhaps due to lack of the
I-864 AOS, that applicant must proceed with IR1 processing
and may not choose to apply instead for the K3. If the I-
130 petition remains at or is in transit from NVC, or the
applicant has already commenced K3 application (by
returning Packet 3 forms) when the I-130 petition arrives
at post, he/she may continue to process the K3 rather than
switch to IR1 processing. K3 applicants may opt at any
time to process as IR1s rather than continue the K3
application.

31. Department notes that place of application for some
K3 applicants will cause problems in this regard. Many
K3s must apply at non-IV issuing posts in regions where IV
processing is centralized in a post outside the country.
For example, if a K3 petition is received by the non-IV
issuing consular section in Almaty, Kazakhstan, and an IR1
petition is already at the consular section in Moscow (the
designated centralized IV post for the former Soviet
countries), the K3 applicant in Almaty should not be told
he/she must travel to Moscow in order to process the IR1
in Moscow. He/she may apply for the K3 in Almaty despite
“availability” of an IV in Moscow, or he/she may abandon
K3 processing and opt for IV processing in Moscow.

——————————
Who Is Eligible for the K3/K4?
——————————

32. Only spouses of U.S. citizens may be issued a K3.
Only minor, unmarried children of a K3 are eligible for a
K4. Other relatives of U.S. citizens are not eligible for
K3/K4 visas, and no relatives of legal permanent residents
may obtain K3 visas. The K3 is a close substitute for an
IR1 immigrant visa and was designed to speed processing
and family reunification for spouses of U.S. citizens.

33. Note that a child of a U.S. citizen petitioner is not
eligible for a K4 visa unless that child is also a
derivative child of an eligible K3 spouse. Unlike the K3,
the K4 is not a close substitute for an IR2 immigrant
visa. Most K4 recipients will probably be stepchildren of
U.S. citizen petitioners.

——————————————————-
Should a K4 be processed if the derivative child is not
named on the I-129F petition?
——————————————————-

34. The K4 should not be denied for lack of the listing
of the childs name on the I-129F petition. As in
processing F2A derivative children, the K4 visa can and
should be issued to a derivative child who can demonstrate
that he/she is the minor, unmarried child of applicant
issued a K3 visa.

————————————————–
Can K3/K4 Applicants Change To Or From Another NIV
Category Once They Enter the United States?
————————————————–

35. According to the INS regulation, “K3 and K4
nonimmigrants may not change to any other nonimmigrant
classification; this is comparable to the prohibition
against adjustment of a K to LPR on any basis other than
the marriage on which the K petition was based.”

36. Furthermore, non-immigrant aliens will not be able to
change from another NIV status to K1, K2, K3 or K4 status
while in the United States.

37. According to the INS rule, the alien spouse of a U.S.
citizen and a child of that spouse who are already in the
United States may have the U.S. citizen file an I-130
petition on their behalf with INS; the alien spouse and
his/her child may then file with INS for an adjustment of
status to LPR. While either of these are pending, the
alien spouse and his/her child may remain in the United
States without accruing unlawful presence, and they may
also obtain work authorization and permission to travel
outside the U.S., and they may continue to do so without
K3/K4 status or visas.

——————————————————–
Use of the K3/K4 NIV to Travel Outside the United States
——————————————————–

38. According to the INS rule, “aliens present in the
United States in a K3/K4 nonimmigrant classification may
travel outside of the United States and return using their
nonimmigrant K3/K4 visa, even if they have filed for
adjustment of status in the U.S. prior to departure “The
Service will not presume that departure constitutes
abandonment of an adjustment application that has been
filed.”

39. Note that this is quite different from those holding
K1/K2 status who are required to obtain advance parole
from INS to avoid abandonment of their adjustment
application with INS, if they leave the United States.

———–
VO Contacts
———–

40. Any questions regarding legal issues of the LIFE Act
should be addressed to CA/VO/L/R – Ed Odom. Questions on
processing procedures may be sent to CA/VO/F/P – Christine
Osage.
POWELL

 

 

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