New Family Visa Regulations Issued with the Aim of Speeding Up Processing of Overseas Spouses and Children of U.S. Citizens
August 17, 2001
Included in the Legal Immigration and Family Equity Act (“LIFE Act”) enacted on December 21, 2000, were provisions aimed at alleviating the hardships faced by overseas spouses and under 21 year old children separated from their U.S. citizens spouse/parent while they await the processing of their immigrant visas at a consular post in their home country. Due to backlogs faced by INS processing centers adjudicating the I-130 petitions (for Chicago area petitioners, it is the Nebraska Service Center) and even worse, the heavy volume faced by U.S consular posts abroad (such as in Manila, Philippines or Juarez, Mexico), such spouses and children sometimes end up waiting more than a year for their immigrant visas to be processed. And this situation has all come about despite the fact that there is actually no cut-off date for visa availability for beneficiaries in the “Immediate Relative” or “IR” family petition category. That is, for spouses and under 21 year old children of U.S. citizens, and parents of adult (over 21) U.S. citizens, visa availability is current.
So, to remedy the situation, the LIFE Act created the K-3 and K-4 visa option for the spouses and children of U.S. citizens to enter the U.S. on a nonimmigrant visa while their immigrant status is being sorted out. Specifically, if you are the a) spouse of a U.S. citizen or b) under 21 year old child or step-child of a U.S. citizen (although for stepchildren, their step relationship with the step-parent must have been created prior to their turning 18 years of age) you may be eligible to gain entry into the U.S. via the K-3 or K-4 visa, although the I-130 petition filed on your behalf is still pending at an INS Service Center in the U.S.
In order for such a spouse or child to qualify for the new K-3 or K-4 visa, a new petition, the newly revised (as of 3/29/01) I-129F must be filed on their behalf with INS with proof of, among other requirements, that an earlier filed I-130 is still pending. This petition is to be filed with the INS via U.S. mail, at P.O. Box 7218, Chicago, IL 60680-7218. Although the petition is still called “Petition for Alien Fiance(e)”, its new use is for spouses and under 21 year old children of U.S. citizens who are already the subject of a pending I-130 petition.
From there, the visa beneficiary will ultimately be directed to appear at the U.S. consular post abroad to present the results of their medical exam and pick up their K-3, or K-4 visa. Once they enter the U.S., the K-3 or K-4 visa holder will continue to undergo their immigrant processing at a local INS office.
Of course, these overseas family members may still choose to wait out the consular processing of their immigrant visas, since that way they will be entering the U.S. in immigrant (“green card”) status, and will not have to face another bureaucratic encounter with a local INS office to finish up their immigrant processing.
Yes, in theory, the mission of reuniting families waiting out lengthy processing times is accomplished by way of the K-3 and K-4 visa option. However, based on my experience dealing with various INS offices across the U.S. and various high volume consular posts, I see the new K-3 and K-4 visas to be of limited value. Why?
In essence, we will be relying on the INS and the U.S. consular post abroad to process and adjudicate yet a second filing while the first filing has yet to yield a benefit, a procedure that hardly makes sense given the limited resources available to the INS here in the states, and the consular posts abroad. And unless these offices are able to allocate increased resources and staff to the processing of the new K-3 and K-4 filings, it is a mystery to me how the new visas will lead to quicker reunification of families. In effect, new holes in the ship will be plugged up by taking our fingers out of other holes, holes that will just start leaking again. On the other hand, maybe new resources will be directed to this cause. We will just have to wait and see.
For more information on this new visa and the new I-129F, visit the INS’ website – reachable as a resource link from my own website, www.usavisacounsel.com.
PUBLISHED August 17, 2001 – “IMMIGRATION LAW FORUM”
Copyright © 2001-2008, By Law Offices of Richard Hanus, Chicago, Illinois