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The spouse of a U.S. citizen is immediately eligible for permanent residence upon marriage, but issues arise when the fiancée seeks to enter the US prior to the wedding or when a marriage has occurred outside of the US. In both cases, the individual may be entering the U.S. with the intention of establishing permanent residence but without having completed the lengthy immigration process, which may take months or years to complete. Rather than requiring the fiancée or spouse to wait outside the US to complete processing, the law permits issuance of a non-immigrant visa authorizing residence and work in the U.S. while awaiting adjudication of the adjustment.
Fiancé(e)of a US Citizen (K-1) Where the parties are not yet married, the US citizen files a petition with USCIS providing information about himself and his intended and her minor children, if any. The parties must establish that they have met in person at least once within the last two years, with an exception made for extreme hardship or where compliance would run contrary to "strict and long-established customs," e.g., where it is traditional for the bride and groom not to meet prior to the wedding. The betrothed must also demonstrate their intention to marry within 90 days of the foreign fiancé(e)'s entry, and attest that it will be a bona fide marriage not entered into solely for immigration purposes. Upon grant, the foreign individual and her children may apply for a visa, normally at a consulate in her home country, and travel to the US. Note that the marriage must take place within four months of grant of the petition. After the wedding, the US citizen spouse may file a petition for permanent resident status and application to adjust his new spouse's status.
The spouse of a US citizen may obtain a green card through either of two methods: (1) through consular processing while waiting outside of the US; or (2) through an adjustment of status while residing in the US in K-3 nonimmigrant status while USCIS works through processing. Choosing between these two methods requires an assessment of the facts of each case, but these days consular processing is far faster than awaiting USCIS action on an adjustment of status. In many countries, for example, consular processing of immediate relative visas takes only about six months, and the beneficiary enters the US in permanent resident status. If, instead, the spouse chooses to enter the US in K-3 status, her spouse would first have to file a petition for permanent residence, wait for an approval notice, and then file a petition for the non-immigrant K-3 visa. She would have to wait outside of the US up to four months for USCIS to adjudicate the K-3 petition, then wait for a consular interview, and only then enter the US, notably, as a nonimmigrant. Once in the US, she may file for adjustment of status and employment authorization documents, which alone may take months to adjudicate, and which ultimately may require the beneficiary to spend the better part of a day at a District Office in order to obtain a work card. Processing time for the green card itself may take a year or considerably more. For the foregoing reasons, there is much to be said for consular processing where time and circumstances allow.
As noted, a K-1 petition is valid for four months from grant. It may not be extended, but may be revalidated by a USCIS District Office for another four month term if the parties reassert their intention to marry within 90 days. Admission on a K-3 visa provides an authorized stay of two years. If permanent residence adjudication has not been completed in that time, USCIS will grant extensions of stay in two year increments. If the I-130 immigrant petition has been approved, but the adjustment of status application not yet filed, USCIS may still grant an extension upon demonstration of "good cause." This might include, for example. illness, job loss of some other "catastrophic" event. The K-3 visa will terminate without further action by USCIS upon denial of the underlying immigrant petition or adjustment application, or upon the divorce from the US citizen becoming final. Note that the death of the US citizen spouse may permit the adjudication to proceed.
The minor children of an alien fiancé(e) or spouse may obtain K-2 and K-4 status, respectively. The status is dependent on the continued status of the parent and will terminate with the principal's. Additionally, K-4 status will end with the beneficiary's marriage, whether or not as a minor.
Neither a K-1 or K-3/K-4 beneficiary may change to another nonimmigrant status, and nonimmigrants in other categories may not change status to K-1 or K-3/K-4.
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