Late in the evening of April 20, 2020, President Trump announced by Tweet that he…
If only I had a dollar for every time a client was confused about K-3 visas. But the confusion is understandable.
Basically, Congress created the K-3 visa category as a way to get married couple reunited without having to wait through the lengthy marriage visa process. K-3 visas are supposed to be available to couples after they are marred and have initiated the marriage visa process by filing a Form I-130 petition.
In theory, the couple is supposed to be able to request a K-3 visa by filing a Form I-129F with USCIS after they’ve already filed their Form I-130. When filing the Form I-129F for a K-3 visa, the couple proves that the Form I-130 has been filed by submitting a copy of the USCIS filing receipt. USCIS is then supposed to review the Form I-129F, then pass the request to the appropriate U.S. consulate to process the K-3 request. All of this should happen far faster than the lengthy processing time for the Form I-130 marriage visa petition.
So what’s the problem? The problem is that the immigration agencies have adopted procedures that completely mess up this process.
For sake of background, here’s the quick version of how a marriage-based visa is processed. The Form I-130 petition is first filed with USCIS, which reviews it for basic sufficiency. If everything is in order, USCIS forwards the Form I-130 to the State Department’s National Visa Center (NVC). The NVC is in charge of collecting further supporting documents, and processing a DS-260 visa application filed by the foreign spouse. Once all of this is completed to the satisfaction of the NVC, the mountain of paperwork is shipped off to the appropriate U.S. consulate, where the applicant goes for her visa interview.
Now, here’s the policy that the immigration agencies adopted for K-3 visas.
Once the NVC has received a couple’s I-130 from USCIS it will refuse to process the couple’s request for a K-3. That is true even though the Form I-130 may languish at the NVC for many, many months. It’s common for a couple to take months to deal with all of the requirements at the NVC. In fact, it can take two months for the NVC to review documents even after they’ve been correctly filed. So while that whole process is taking place, the couple still cannot pursue a K-3 visa. Even though the whole purpose of the K-3 is for couples who are waiting for a marriage visa!
Does this mean that it’s impossible to get a K-3 visa approved? That depends largely on USCIS processing times.
At the time of writing, it is taking USCIS a horrendous 10 months (more or less) to process a Form I-130 filed for the spouse of a U.S. citizen. “Okay,” you say, “so that should be plenty of time for us to file a Form I-129F and beat the Form I-130 to the National Visa Center.” That’s a reasonable thought, since usually I-129F petitions move faster than I-130s.
But actually, most service centers are taking just as long to process I-129Fs as they do to process I-130s – at least when filed by a couple that is already married. Here’s a screenshot from the California Service Center.
The Texas Service Center, on the other hand, is processing I-129Fs several faster than I-130s. Remember that you can’t file an I-129F to seek a K-3 until you get the receipt for your I-130. Usually, that comes within a couple weeks of when your Form I-130 gets filed. That means that the Form I-130 petition is going to have a decent head start before you can get your I-129F filed. Even so, if your Form I-129F was transferred to the Texas Service Center – under current processing timelines – it would get adjudicated before your I-130 got transferred to the NVC, which would thwart your K-3 application.
Here is one unorthodox strategy that you could potentially consider.
If there is any defect in a couple’s Form I-130 packet USCIS will issue a Request for Evidence (RFE). Usually that’s a bad thing, since it delays processing of the I-130. It takes time for USCIS to issue the RFE, time for the couple to respond (they normally have 87 days), and then more time for USCIS to review the results.
But in this case, that may not be a bad thing. If the couple is issued an RFE, that could give their Form I-129F petition time to be approved and forwarded to the NVC so they can get their K-3 application underway. The couple could deliberately include a defect in their I-130 petition to manufacture this result, such as by failing to include a copy of the marriage certificate.
This is at least one potential strategy to get the K-3 visa approved. But the question then becomes, is this worth it? Sure, dealing with the NVC for a marriage-based visa is a hassle. But the couple is still going to need to file documents at the NVC for their K-3 application. In most cases, it probably makes more sense to just bit the bullet, get the I-130 through the NVC, and complete the marriage-based visa process.
An additional reason to complete the marriage visa process is cost. If the couple secures a K-3 instead of a marriage visa, the foreign spouse will still need to seek residency after entering the United States. If she enters on a K-3, she will need to pursue adjustment of status to permanent resident. The filing fee alone for that process is approximately $1,000!
We typically advise our clients not to seek a K-3 visa, since it will generally not be granted and just be a waste of money. But you certainly will not hurt your situation by seeking a K-3 while your I-130 is pending. If you are willing to spend $535 on the Form I-129F’s filing fee, there’s no harm in moving forward with it. If your I-130 is substantially delayed then you might end up completing the K-3 process. But in most cases you will simply end up seeing the I-130 through completion.