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Can an alien spouse, children enter the U.S. while awaiting a visa?

In recognition of the difficulty that can result when spouses and their children are forced to live apart, the federal government has long chosen to structure its immigration laws, as well as its policies and procedures, in a way that facilitates family unity.

By way of example, consider the K-3 and K-4 nonimmigrant visas, which enable the alien spouses of U.S. citizens and their minor children to be admitted to the U.S. while their Form I-130 Petition for Alien Relative is being processed by the Department of State.

Who exactly is eligible for K-3 and K-4 nonimmigrant visas?

The K-3 nonimmigrant visa is available to those men and women who are 1) married to U.S. citizens and 2) have Form I-130s filed on their behalf by their citizen spouse.

The K-4 nonimmigrant visa is available to those children who are 1) unmarried, 2) under 21 years of age, and 3) the progeny of qualified K-3 visa applicants. It's worth noting that the stepchildren of a U.S. citizen can qualify for a K-4 nonimmigrant visa provided the marriage that designated them as such occurred prior to their 18th birthday.

How are K-3 and K-4 nonimmigrant visas secured?   

The process of securing either visa starts with the filing of the Form I-130 by the U.S. citizen on behalf of their alien spouse. Once this step is completed, the citizen spouse will receive the Form I-797, Notice of Action, which essentially verifies receipt of the Form I-130 by U.S. Citizenship and Immigration Services.

(While a Form I-130 doesn't technically have to be filed on behalf of children for whom the citizen spouse is looking to secure a K-4 visa, this document will need to be filed on their behalf in order for them to be considered for permanent resident status.)

Once this step is completed, the citizen spouse will have to file the Form I-129F, Petition for Alien Fiancé(e) on behalf of their spouse, complete with a copy of both the Form I-797 and the marriage certificate.

Once approved, the I-129F will be forwarded to the State Department. At this time, both the alien spouse and the minor children can file their applications for the K-3 and K-4 visas.

We'll continue discussing this topic in future posts …

If you have questions or concerns regarding any family immigration issue, consider speaking with an experienced legal professional. 

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