Is the K-3 Spousal Visa Still Available?

05 Mar 2011

In theory, yes, but in practice, not really.  The K3 has been obsolete for several years, and if you submit a K3 nonimmigrant visa petition it will likely be changed to the CR1/IR1 Immigrant visa.

The K-3 visa was created in 2000 to address a huge backlog of immigrant visa petitions for spouses.  To address this problem Congress said that if a person had a Form I-130 petition pending for a spouse they could submit the I-129F form normally used for Fiancée visas.  This would allow the U.S. citizen spouse to enter the United States as a nonimmigrant rather than waiting abroad for the Form I-130 petition to be approved.  The applicant could then file the Adjustment of Status based on the K-3 petition rather than waiting for the I-130 to be approved.

Today, there is no longer a substantial backlog of I-130 petitions so there is no real need for the K-3 in most cases.  While the K-3 has not been officially eliminated as some have reported a K-3 petition filed now will almost certainly be converted to a CR1/IR1 and the I-129F petition will be dropped.  Since the filing fee for both the CR1/IR1 and the K-3 are both $420 there is no harm in “hedging your bet” and filing the K-3 unless you have children.  With the K-3 a child an be included and receive a K-4 visa without filing the I-130 and paying the associated $420 filing fee.  However once the child enters the U.S. and files the Adjustment of Status (AOS) to receive the green card he/she would then need to concurrently file the I-130 and pay the $420 filing fee along with the AOS fees.  So while you save the $420 I-130 fee for the child initially it must eventually be paid.

Because most K-3’s are being effectively changed to the CR1/IR1 now it would be a mistake to file a K-3 without including the I-130 for any children.  If a K-3 is submitted without the child’s I-130 and is changed to the CR1/IR1 the child would be left out because he/she had no I-130 to be approved.

Hopefully, we will never again suffer the huge I-130 backlogs that made the K-3 necessary in the first place.  Last month (February 2011) the USCIS reported a backlog of 30000 Form I-130 petitions but then shifted resources to substantially eliminated this backlog by the end of the month.

Another important point worth mentioning is that the CR1/IR1 also results in a substantial cost savings since the alien does not need to file the AOS and pay the associated filing fee of $1070.

So while the K-3 still technically exists it would likely be changed to the CR1/IR1 anyway.  It cost nothing extra to send in the I-129F just in case but it will likely be dropped.

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