Immigration Attorney

Spouses, Fiancées, and Fiancés of United States Citizens

(1) Petition and supporting documents. To be classified as a fiance or fiancee as defined in section 101(a)(15)(K)(i) of the Act, an alien must be the beneficiary of an approved visa petition filed on Form I–129F. A copy of a document submitted in support of a visa petition filed pursuant to section 214(d) of the Act and this paragraph may be accepted, though unaccompanied by the original, if the copy bears a certification by an attorney, typed or rubber-stamped, in the language set forth in §204.2(j) of this chapter. However, the original document shall be submitted if requested by the Service.

(2) Requirement that petitioner and K–1 beneficiary have met. The petitioner shall establish to the satisfaction of the director that the petitioner and K–1 beneficiary have met in person within the two years immediately preceding the filing of the petition. As a matter of discretion, the director may exempt the petitioner from this requirement only if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the K–1 beneficiary’s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day. In addition to establishing that the required meeting would be a violation of custom or practice, the petitioner must also establish that any and all other aspects of the traditional arrangements have been or will be met in accordance with the custom or practice. Failure to establish that the petitioner and K–1 beneficiary have met within the required period or that compliance with the requirement should be waived shall result in the denial of the petition. Such denial shall be without prejudice to the filing of a new petition once the petitioner and K–1 beneficiary have met in person.

(3) Children of beneficiary. Without the approval of a separate petition on his or her behalf, a child of the beneficiary (as defined in section 101(b)(1)(A), (B), (C), (D), or (E) of the Act) may be accorded the same nonimmigrant classification as the beneficiary if accompanying or following to join him or her.

(4) Notification. The petitioner shall be notified of the decision and, if the petition is denied, of the reasons therefor and of the right to appeal in accordance with the provisions of part 103 of this chapter.

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(5) Validity. The approval of a petition under this paragraph shall be valid for a period of four months. A petition which has expired due to the passage of time may be revalidated by a director or a consular officer for a period of four months from the date of revalidation upon a finding that the petitioner and K–1 beneficiary are free to marry and intend to marry each other within 90 days of the beneficiary’s entry into the United States. The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States.

(6) Adjustment of status from nonimmigrant to immigrant.

(i) [Reserved]

(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K–1 visa issued on or after November 10, 1986, the K–1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

(7) Eligibility, petition and supporting documents for K–3/K–4 classification. To be classified as a K–3 spouse as defined in section 101(a)(15)(k)(ii) of the Act, or the K–4 child of such alien defined in section 101(a)(15)(K)(iii) of the Act, the alien spouse must be the beneficiary of an immigrant visa petition filed by a U.S. citizen on Form I–130, Petition for Alien Relative, and the beneficiary of an approved petition for a K–3 nonimmigrant visa filed on Form I–129F.

(8) Period of admission for K3/K–4 status. Aliens entering the United States as a K–3 shall be admitted for a period of 2 years. Aliens entering the United States as a K–4 shall be admitted for a period of 2 years or until that alien’s 21st birthday, whichever is shorter.

(9) Employment authorization. An alien admitted to the United States as a nonimmigrant under section 101(a)(15)(K) of the Act shall be authorized to work incident to status for the period of authorized stay. K–1/K–2 aliens seeking work authorization must apply, with fee, to the Service for work authorization pursuant to §274a.12(a)(6) of this chapter. K–3/K–4 aliens must apply to the Service for a document evidencing employment authorization pursuant to §274a.12(a)(9) of this chapter. Employment authorization documents issued to K–3/K–4 aliens may be renewed only upon a showing that the applicant has an application or petition awaiting approval, equivalent to the showing required for an extension of stay pursuant to §214.2(k)(10).

(10) Extension of stay for K–3/K–4 status —(i) General. A K–3/K–4 alien may apply for extension of stay, on Form I–539, Application to Extend/Change Nonimmigrant Status, 120 days prior to the expiration of his or her authorized stay. Extensions for K–4 status must be filed concurrently with the alien’s parent’s K–3 status extension application. In addition, the citizen parent of a K–4 alien filing for extension of K status should file Form I–130 on their behalf. Extension will be granted in 2-year intervals upon a showing of eligibility pursuant to section 101(a)(15)(K)(ii) or (iii) of the Act. Aliens wishing to extend their period of stay as a K–3 or K–4 alien pursuant to §214.1(c)(2) must show that one of the following has been filed with the Service or the Department of State, as applicable, and is awaiting approval:

(A) The Form I–130, Petition for Alien Relative, filed by the K–3’s U.S. citizen spouse who filed the Form I–129F;

(B) An application for an immigrant visa based on a Form I–130 described in §214.2(K)(10)(i);

(C) A Form I–485, Application for Adjustment to that of Permanent Residence, based on a Form I–130 described in §214.2(k)(10)(i);

(ii) “Good Cause” showing. Aliens may file for an extension of stay as a K–3/K–4 nonimmigrant after a Form I–130 filed on their behalf has been approved, without filing either an application for adjustment of status or an immigrant visa upon a showing of “good cause.” A showing of “good cause” may include an illness, a job loss, or some other catastrophic event that has prevented the filing of an adjustment of status application by the K–3/K–4 alien. The event or events must have taken place since the alien entered the United States as a K–3/K–4 nonimmigrant. The burden of establishing “good cause” rests solely with the applicant. Whether the applicant has shown “good cause” is a purely discretionary decision by the Service from which there is no appeal.

(11) Termination of K–3/K–4 status. The status of an alien admitted to the United States as a K–3/K–4 under section 101(a)(15)(K)(ii) or (iii) of the Act, shall be automatically terminated 30 days following the occurrence of any of the following:

(i) The denial or revocation of the Form I–130 filed on behalf of that alien;

(ii) The denial or revocation of the immigrant visa application filed by that alien;

(iii) The denial or revocation of the alien’s application for adjustment of status to that of lawful permanent residence;

(iv) The K–3 spouse’s divorce from the U.S. citizen becomes final;

(v) The marriage of an alien in K–4 status.

(vi) The denial of any of these petitions or applications to a K–3 also results in termination of a dependent K–4’s status. For purposes of this section, there is no denial or revocation of a petition or application until the administrative appeal applicable to that application or petition has been exhausted.

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