K-3 Visas (Spouse of a US Citizen)
Spouses of U.S. citizens, and the spouse's children, can go to the United States on nonimmigrant visas (K-3 and K-4) and wait in the United States to complete the immigration process. Before a K-4 visa can be issued to a child, the parent must have a K-3 visa or be in K-3 status.
K-3 Filing – (Two Petitions are required)
The US citizen petitioner must first file an immigrant Petition for Alien Relative, form I-130 for your spouse with the USCIS Office that serves the area where he/she live. The USCIS will send you a Notice of Action (Form I-797) receipt notice. This notice tells you that the USCIS has received the petition.
You next file Petition for Alien Fiancé(e), form I-129F for your spouse and children. Send the I-129F petition, supporting documents and a copy of the Form I-797 receipt notice to the Department of Homeland Security USCIS address listed on the form.
National Visa Center (NVC) Sends Petition To Post
After the USCIS approves the I-129F, it sends it to the National Visa Center (NVC). The NVC sends the petition electronically to the embassy or consulate in the country where the marriage took place. If your marriage took place in the United States, the NVC sends the petition to the embassy or consulate that issues visas in the country of your spouse's nationality.
If your marriage took place in a country that does not have an American embassy, or the embassy does not issue visas, the NVC sends the petition to the embassy or consulate that normally processes visas for citizens of that country. For example, if the marriage took place in Tonga where the United States does not have an embassy, the petition would be sent to Fiji.
Applying for a Visa
The embassy or consulate where the spouse of an American citizen, will apply for a K-3 visa must be in the country where the marriage took place.
The I-129F petition is valid for four months from the date of approval. A consular officer can extend the validity of the petition (revalidate the petition) if it expires before you finish processing the visa.
Children Have Derivative Status
Children do not need separate Petition for Alien Relative, I-130 petitions, but you, the petitioner, must take care to name all your children on the Petition for Alien Fiance, I-129F petition. If you do not name the children on the petition, they may find it difficult to prove their identity as children of a K-3 applicant or person in K-3 status.
You must file separate I-130 immigrant visa petitions for your children before they qualify for permanent residence. When they adjust status in the United States, they must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS Office that serves the area where you live. Remember that in immigration law children must be unmarried and under 21 years of age.
How does a K-4 child adjust status in the United States?
The K-4 child will not be able to file for adjustment of status in the United States until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained legal permanent resident (LPR) status, but the child would have to wait for an available visa number. Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence.