A K-3 visa or “spousal” visa is designed to allow the foreign spouse of a U.S. citizen to travel to the United States as a nonimmigrant (that is, a temporary visitor). Once here, the couple can apply for permanent residence (a green card). The K-3 visa allows the couple to move to the United States without waiting abroad for a green card to be granted.
A K-3 visa can usually be obtained rather easily and the process is often faster than other visa routes. Be aware, though, that the U.S. consulate or embassy abroad will look closely at the application to prevent instances of marriage immigration fraud.
How to Obtain the K-3 Visa
The first step is to prepare the application form and submit it to the U.S. consulate or embassy nearest to the foreign spouse’s home. You must provide translated and certified copies of the marriage documents. Other standard immigration visa requirements apply, including:
- Valid travel documents
- Identification papers (e.g. birth certificate, passport)
- Proof of medical examinations and vaccinations
- Various fees
You will need to schedule an interview with the consulate or embassy. If the embassy requires additional documentation, it will tell you so beforehand.
After entering the United States the couple will want to file an application for adjustment of status to a permanent residence visa (a green card).
Can a Person Work in the U.S. If They Enter with a Spousal Visa?
Once the applicant is granted their K-3 visa and they have entered the U.S. they can apply to work in the U.S. before they apply for permanent residence, or while they await the decision on an application for permanent residence. To do so they must obtain a valid Employment Authorization Document (EAD). This document is obtained by filing form I-765. Alternatively, they can wait until they are ready to file for an adjustment of status to a green card, and then file both forms together at once.
What about Children of the Foreign Spouse?
The ability of the child of a foreign spouse to move to the United States depends on the age and marital status of the child. If the child is unmarried and under the age of 21, they may apply for a K-4 visa, which allows them to travel to the U.S. and receive temporary nonimmigrant status.
Once in the country, the child can then file for an adjustment of status, much in the same way that their parent would. In many cases, the child can accompany the spouse when they travel from their home country to the U.S.
Both the parental spouse and the American citizen step-parent need to ensure that the child’s visa remains valid and that they file for adjustment of status early. If the child’s visa expires, and they have not yet filed for an adjustment of status, they may be required to leave the U.S. with or without their parent.
Requirements for a Marriage to be Valid Under U.S. Law
The U.S. Citizen and Immigration Service (USCIS) usually recognizes any marriage that is valid in the foreign country where it occurred to be legal under U.S. law. There are some exceptions.
Even if they are legal and valid in the foreign country, U.S. officials (immigration examiners and county clerks alike) will not recognize the following marriages:
- Civil unions
- Child marriages
- Domestic partnerships
- Proxy marriages
- Polygamous marriages
Marriage between two people of the same gender is legal in the U.S. However, it is important to note that if such a couple gets married abroad in a country that does not recognize this type of marriage, the U.S. will also not recognize it as legal for immigration. Marriage is bound by the laws of the place or jurisdiction where it took place. If the country where the marriage occurred does not recognize same sex marriage, then the USCIS will also deem the marriage invalid.
The process of marrying overseas can be complicated. Procedures change from country to country, and some mandate lengthy preparation. If you plan to get married in a foreign country, you should inquire about the requirements of that country before you travel. Some of the requirements you might encounter are:
- Parties must be resident in that country for a particular period of time before a marriage may be performed there
- Blood tests
- Minimum age for the parties who are being married
- Parental consent
- Documents certifying the end of any previous relationship (such as death or divorce certificates) must be translated into the local language and authenticated
Another Option for Moving to the U.S. as the Spouse of a Citizen: K-1 Fiance Visas
The K-3 visa allows spouses of U.S. citizens to enter the United States. There is another option. A fiancé visa, or K-1 visa, is granted to foreign citizens who intend to travel to the U.S. to marry an American citizen. This visa allows the fiancé entry into the United States before the marriage occurs.
A fiancé visa does not grant the individual permanent residence. Instead it grants the individual 6 months to enter the United States, and 90 days following that to marry the U.S. citizen. This visa option is conditional on a foreign partner marrying their U.S. citizen partner within the 90 day period. If the couple does not marry within that time frame, the foreign spouse must exit the U.S.
The K-1 fiancé visa allows entry for the individual only once. Once the alien has entered the country, they cannot leave and return on the K-1 visa.
In order to be eligible for a K-1 fiancé visa, the individual must meet the following requirements:
- The individual must intend to marry a U.S. citizen. This can be proven through evidence such as plans of a ceremony or other marriage proceedings
- Their future spouse must be an actual U.S. citizen and not just a permanent resident or a green card holder
- The individual must be legally able to marry. For example, they must be the proper age for marriage, and must not be married to another individual.
Marriage Fraud
An individual commits visa fraud when they use deceit or misrepresentation as a means to obtain a spousal visa.
The USCIS investigates the authenticity of marriages between a U.S. citizen and a foreigner. People who use marriage as their ticket to enter the U.S. for gains other than being married are considered to have committed marriage visa fraud. Such individuals can have their green card revoked, including their chances of ever obtaining a visa in the future.
Marriage-related visa fraud may occur in a variety of ways. It may be as simple as an individual approaching an American tourist abroad and offering the money in exchange for a false relationship in order to deceive immigration authorities and obtain a green card.
Common examples of fiancé visa fraud which are often discovered by the USCIS may include:
- Lying and providing false information on a visa application
- Showing staged photos or other fake evidence to support a sham marriage
- Having witnesses falsely testify on behalf of the couple and their relationship history.
If individuals are caught attempting to defraud the United States government, harsh penalties may follow. The possible penalties for immigration fraud may vary depending on the party. For the foreign spouse, they will likely be deported from the U.S. They may also be barred from re-entering the United States for a specified period of time. They may also lose their chance at naturalization.
For a United States citizen and any other party who participated in the fraud, they may be subject to criminal charges, fines, incarceration, and a combination of incarceration and fines. This may include any individual who participated in the attempt at defrauding the government, including false witnesses.
Do I Need a Lawyer for Help with a K-3 Spousal Visa?
Spousal, fiance, and children’s visas can be complicated and they require great attention to detail. The process of petitioning for a loved one can take a long time and may require the assistance of an immigration lawyer. Mistakes in the paperwork or accompanying documents can greatly extend the time it takes to get the desired result.
If you or a loved one of yours needs legal assistance with immigration matters, it would be wise to contact an immigration attorney. A lawyer will be able to help you with the various forms, documents, and requirements needed for the immigration process, and prevent errors from lengthening the process.
