How does U.S. immigration law define a spouse?

• A spouse is a legally wedded husband or wife.
• Merely living together does not qualify a marriage for immigration.
• Common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs.
• In cases of polygamy, only the first spouse may qualify as a spouse for immigration.
• Same-sex marriages are now recognized by immigration law for the purpose of immigrating to the U.S.
  
  

Eligibility?

• The visa beneficiary must be the legal spouse of a U.S. citizen. (Please note that spouses of green card holders are not eligible for a K-3 visa).
  
• The visa beneficiary must be currently residing outside the United States.
  
• The U.S. citizen must meet certain income requirements. This will be determined by the current adjusted HHS poverty guidelines.
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  The U.S. citizen must have submitted an I-130 petition to sponsor the foreign spouse and the petition must be pending with the USCIS. In other words, the petitioner (the U.S. citizen) must have received a receipt notice from the USCIS, but the petition must not have been approved yet.
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  If the foreign spouse has children (biological or adopted) who will also come to the U.S. on a K-1 visa, the children must be under the age of 21 and unmarried.

Documentation:

Supporting documents for K-3 consular processing may vary depending on the embassy or consulate. However, the following are the common items you will need to complete the application:

• Original birth certificate
• DS-160 form submission confirmation
• Foreign passport of the visa applicant
• Results of the immigration medical certificates
• Two (2) colored passport-sized photographs (must meet these requirements)
• Affidavit of Support (I-134 form), if required
• Evidence of termination of previous marriage(s), if applicable
• Completed Nonimmigrant Visa Application DS-156 and Supplement DS-156k Forms.
• Filled Biographical DS-230 Form
• Background check clearance

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Process:

There are three major steps involved in getting a K-3 visa. The U.S. citizen will begin the process by filing an I-130 form. While that is pending, he or she will also submit an I-129F petition. Once the I-129F form is approved, the foreign spouse will complete the process through consular processing at a U.S. embassy or consulate in his or her home country. Each of these stages is explained below:

I-130 Form

The U.S. citizen sponsor must first file I-130 form, otherwise known as Petition for Alien Relative, with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) office that serves the area where the U.S. citizen lives. 

The I-130 form is used to establish that there is a valid marriage between the U.S. citizen and foreign spouse for the purpose of permanent immigrant visa application. Due to the common fraudulent methods associated with marriage-based green card sponsorship, the USCIS will require the petitioner to prove beyond doubt that their marriage is bona fide, and not fraudulently entered into for the purpose of getting a green card. 

Several personal questions will be answered in the application form. There must also be relevant strong supporting documents as proof of genuine marriage. See the documents checklist for the I-130. 

After submitting the I-130, the USCIS will send a receipt number indicating that they have received the application. However, because immigrant visas can take a long time to process and it’s often not ideal to stay apart from family for the whole processing period, the K-3 nonimmigrant visa will allow applicants to live in the U.S. during that pending time.

I-129F Form

Having completed the above requirements, the U.S. citizen spouse would then need to file an I-129F. Though this form is known as the Petition for Alien Fiancé(e), it is also used for K-3 spousal visas. 

While the I-129F is for the nonimmigrant visa application process, it has many things in common with the I-130 form in that they are both used to establish a bona fide marriage relationship. Therefore, the U.S. citizen will need to submit the form along with supporting documents similar to the ones submitted with the I-130 form. They are as follows:

• The U.S. citizen’s proof of citizenship (e.g. passport, birth certificate, naturalization certificate).
• If either the foreign spouse or U.S. citizen have been previously married, proof of termination of the previous marriage must be submitted. This could be a copy of the divorce decree, marriage annulment, or death certificate.
• The foreign spouse’s passport
• Marriage certificate. If it was issued in a language other than English, it must be submitted in a certified English translation.
• I-979 Form, Receipt of Notice for I-130 petition
• Passport size photographs of both the U.S. citizen and foreign spouse
• Departure/Arrival Record (I-94 form) if the foreign spouse has even been to the U.S.

The average time to receive the receipt of notice is around 30 days. Depending on the workload at the USCIS service center in charge of the petition, the I-129F form processing time ranges between six to nine months. After USCIS approves the petitions, they will be sent to the National Visa Center (NVC) for processing. The beneficiary (foreign spouse) will also get the correspondence that the I-129F form has been approved. 

If the NVC receives the approved I-129F petition before it receives the I-130 petition, the NVC will process the I-129F petition. NVC will then send the I-129F petition to the U.S. embassy or consulate in the country where the marriage took place.

• If the marriage took place in the United States, the NVC would send the petition to the U.S. embassy or consulate that issues visas in the foreign-citizen spouses country of nationality.
• If the marriage took place in a country that does not have a U.S. embassy, or the embassy or consulate does not issue visas, the NVC will send the petition to the U.S. embassy or consulate that normally processes visas for citizens of that country.

The U.S. embassy or consulate where the foreign-citizen spouse will apply will provide him/her with specific instructions, including, where to go for the required medical examination. The foreign citizen spouse will then be called for an interview at the U.S. embassy or consulate to determine if he/she is eligible to receive the K-3 visa.

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