K3 Visa, Form DS-160 for K Visa Application

The purpose of the K-3 visa category was used to provide a faster avenue for the immigration of spouses of U.S. citizens, if the foreign national resided abroad. The K-3 visa application requires both Form I-130 and Form I-129F filing. The K-3 nonimmigrant petition for the spouse of a U.S. citizen must be preceded by the filing of the I-130 immediate relative petition. There is no need to wait for a decision on the I-130 to file Form I-129F, it must simply be filed. The K-3 case is filed using Form I-129F, as is the K-1 for fiancé/fiancée.

Prior to the creation of the K-3 category, the only option was the I-130 petition for immediate relative. The processing times for I-130s, combined with the waiting times for interviews at the consulates, often left couples separated for more than a year. The K-3 processing with Form I-129F was supposed to be much faster than the I-130 approval, and thus, was an attractive option for many couples in this situation, and the U.S. citizen's spouse can wait for the Form I-130 result inside the United States.

The U.S. Department of State (DOS) has issued a notice regarding a change in processing procedures for K-3 visa cases. K-3 cases are filed for spouses of U.S. citizens. Now if both the K-3 visa petition approval (Form I-129F) and required immigrant visa petition approval (Form I-130) are transmitted from USCIS to the National Visa Center (NVC), then the K-3 process will be discontinued by NVC. The NVC will process the I-130 immediate relative petition only, so that the foreign national spouse will be able to enter the United States on an immigrant visa (Green Card status), instead of the K-3 nonimmigrant visa. The stated reason is that the availability and need for the K-3 nonimmigrant visa ends if the I-130 petition has been approved.

The K-3 case will end at the NVC if the required I-130 approval by USCIS has reached the NVC. That is, if the USCIS approves and transmits the Form I-130 to the NVC in advance of or at the same time of the I-129F K-3 petition approval, then the NVC will terminate the processing of the K-3 case. The NVC will proceed with the I-130 immediate relative case.

After processing at the NVC, the case will be forwarded to the appropriate consulate for an interview. If the interview goes well, the spouse will be approved as an immediate relative after obtaining the immigrant visa stamp at the U.S. consulate abroad. The spouse then may enter the United States using the immigrant visa, and be admitted as a lawful permanent resident to the U.S. This change in procedure makes the K-3 a less attractive in some cases. Of course, this depends upon the speed at which I-130 petitions are processed in this type of case at the USCIS.

Complications can arise because adjudication of Form I-129F sometimes takes longer than the adjudication of Form I-130. Once the I-130 is approved, the I-129F may be administratively closed. Some applicants reported that they called the USCIS National Customer Service on different occasions to inquire about the K-3 process and received different answers from the USCIS representatives.

This inconsistent advice makes it difficult to understand if an I-129F filing, in fact, is matched with the related I-130, and if it may be administratively closed if the I-130 is approved. If this is the case, it leaves the beneficiary with the only option of applying for an immigrant visa instead of a K-3 visa.

In recent years, the processing times for I-130 petitions for immediate relatives has improved. Thus, the K-3 did not always provide a significant advantage over the I-130 immigrant visa. Since there was variation and unpredictability in the processing time of the cases, however, many people continued to utilize the K-3 option.

Although initially designed to overcome long delays associated with the traditional immigrant visa process for the spouse of a U.S. citizen, the experiences and concerns soon revealed that the K-3 visa process is complicated, costs money, and may take longer than was first anticipated.

Some applicants reported that, depending on which consulate is processing a spouse's K-3 visa, the wait time to get a K-3 visa appointment may be significant. The length of the wait time often depends on the date the petitioner's I-129F filing was received by the USCIS. Currently, the I-129F receipt date determines the date of the filing. The problem arises when the petitioner files an Form I-130 and has to wait several months for this filing to be receipted.

Only after it is receipted can the U.S. citizen then file the I-129F petition. This causes unnecessary delays that prevent many families from reuniting for long periods of time, thereby negating the very purpose of the K-3 filing.

A: U.S. Department of State now uses the form DS-160 for both K1/K2 Visa Applications and K3/K4 Visa Applications. All K visa applicants are required to fill the DS-160 Online Nonimmigrant Visa Application. The DS-160 replaces the following previous forms:

6. Form DS-160 - Online Nonimmigrant Visa Application

The online nonimmigrant visa application form DS-160 is used for temporary travel to U.S., and also for K-1/K-2 and K-3/K-4 visa applications. The form DS-160 should be submitted to the Department of State's website at https://ceac.state.gov/genniv. The DS-160 form collects all of the required information, and it can be revised as necessary. The DS-160 form is filled out and submitted online at DOS website, and all submitted data is stored in the Department of State's database.

Based on the information provided in the Form DS-160 and the following personal visa interview, the U.S. consular officers can determine an applicant's eligibility for a nonimmigrant visa or a K visa. The important notice for completing the DS-160 includes:

The form DS-160 will ask the visa applicant to provide the current employment information, and the history of employment in the past five years. In addition to the history of U.S. travel, it will also ask the applicant to provide his or her travel history to all other foreign countries in the past five years, including names, years, and visits. If the visa applicant has relatives in the United States, the applicant should also list relatives in the United States, including those who are U.S. citizens or U.S. permanent residents.

In the form DS-160, there are several questions about past immigration information, or possible criminal violations, and any other inadmissibility issues. If the alien applicant has been denied visas or refused entry to the U.S., the dates and details of those events also need to be provided.

7. How to Prove a "Bona Fide" Marriage or Relationship for the Immigration Purpose

To obtain a U.S. Lawful Permanent Residence (Green Card) based on marriage, the petitioner has to prove that the marriage is real or "bona fide". This means a marriage in which the two people intend, from the start, to establish a life together as husband and wife.

Although marriage can mean different things to different people, a marriage entered into for the sole purpose of getting the immigrant a U.S. Green Card is clearly not bona fide. It’s called a “sham” or “fraudulent” marriage.

Uncovering sham marriages is a top priority of U.S. Citizenship and Immigration Services (USCIS), which believes that a high number of the marriage-based green card applications it receives are fraudulent. USCIS is well aware that some U.S. citizens accept money to marry a foreign-born person, and some even create illegal, organized services that arrange marriages between U.S. citizens and green card seeking foreign nationals.

The result is that, when it comes to deciding whether a marriage is "bona fide", USCIS will take a hard look, and expect the applicant to provide plenty of solid proof that their marriage is real. Below are some ways that you can prepare to supply the needed proof, including steps you can take far in advance.

    * make your spouse a beneficiary on your retirement account or other accounts that require or allow a payout to a beneficiary upon the holder’s death;

    * make sure that both spouses are covered under your health insurance policy, if the other spouse doesn't have his or her own insurance;

    * if you live together, add your spouse to your house deed, mortgage, or apartment lease;

    * if you live together, add your spouse’s name to your garbage, utility, cable, and other bills;

    * take out a joint credit card;

    * open a joint bank account;

    * file joint tax returns;

    * join a gym or club together.

8. Conditional Residence Green Card and How to Remove the Conditions

If you are a U.S. citizen or Green Card holder, if you have been married less than two years when your alien spouse is granted U.S. permanent resident status, the alien spouse will receive U.S. permanent resident status on a conditional basis.

To remove the conditions on you spouse's residence status in United States, you and your spouse should apply together using USCIS Form I-751, Petition to Remove the Conditions of Residence. You must apply to remove conditional status within the 90-day period before the expiration date on the conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.

If your alien spuse has a child in previous marriage and if you are petitioning for a step-child and have not been married to the child’s genetic parent genetic or legal gestational mother for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident status also.

Therefore Form I-751 can also be used to remove the conditional basis of permanent residence for the child. If your spouse and child became conditional permanent resident at the same time or within 6 months, the child can be included in your spouse’s petition. If the child became a permanent resident more than 6 months after your spouse, the child will need to file a separate Form I-751.

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