This is an issue that has confused thousands for nearly a decade. The short answer is that although the K-3 visa and K-4 visa are still on the books as part of the LIFE Act, changes in government procedures at USCIS (INS) and later at the Department of State’s National Visa Center, have caused these visas to become virtually impossible to obtain.
Here’s a little history.
On December 21, 2000 the Legal Immigration and Family Equity Act (LIFE Act) was signed into law. One of the provisions this legislation is the creation of K-3 and K-4 non-immigrant visas for spouses of US Citizens who are outside the US, and the children of those foreign spouses. These visas were created to allow reunification of families of US Citizens, by allowing the spouse and children to enter the United States as non-immigrants, and later filing for Adjustment of Status inside the United States, rather than waiting for an immigrant visa petition approval followed by Consular immigrant visa processing. Provisions for processing for the K-3/K-4 became effective on August 14, 2001 after coordination required between USCIS ( then the INS) and the State Department.
At that time, regular immigrant visas for a spouse and step children (The CR-1, & CR-2 visas for the newly married and the IR-1 & IR-2 visas for couples married more than two years, were taking up to 5 YEARS to process through to visa issue. The K-3 visa for spouse and K-4 visa for step children initially cut that time to an average of 18 MONTHS, so a terrific improvement. By 2006, two things had happened. The K-3 and K-4 visa timelines had improved to 9 to 12 months, and the IR-1 visa and CR-1 visa timelines had improved to an average of about 18 months. (Now, immigrant visa timelines are running in the 9 to 12 month range, on average.)
Until November, 2006, USCIS processed the separate petitions for immigrant visas and K-3 visas at different service centers, ( K-3/K-4 visa petitions in Lee’s Summit, MO, and immigrant visa petitions in California or Vermont.) so the petition approval timelines for the petition for alien relative and the follow-up petition that started the K-3 visa path, were not tied together. They were processed on separate tracks. By late 2005, those in the know, would always file both petitions and let the race begin. Whichever petition made its way to a visa interview first, was the winner.
THEN, in November, 2006 USCIS began processing both petitions together, in California or Vermont. When the follow-up petition was filed, it would be mated with the already filed immigrant visa petition, effectively taking the first petition out of its place in line, and having it wait, together with the follow-up petition to be both approved and forwarded to the Department of State’s National Visa Center TOGETHER.
The National Visa Center continued to work both petitions independently, but because the petition for the K-3 visa required no interaction with either the petitioner or the foreign visa applicant before forwarding it to the Consular Immigrant Visa Unit abroad, the K-3 visa virtually always won the race.
NEXT, on February 1, 2010, the National Visa Center changed THEIR PROCEDURES, virtually killing the K-3 visa and K-4 visa paths, (virtually cutting their spouse related visa work in half) even though the LIFE Act that created the K-3 visa and K-4 visa was still in effect. What changed, was NVC’s definition of the term “immediately available” with respect to the “immigrant visa” (IR-1 and CR-1 etc.). Previously, the definition was that when the immigrant visa petition file was on station at the Consular Immigrant Visa Unit abroad, the immigrant visa was considered immediately available. If the petition for K-3 visa was already at the IV unit abroad and the visa or visas had not already been issued, that case was administratively closed at the “IV Unit” abroad. More commonly, the K-3 visa and any related K-4 visas had already been issued, rendering NVC’s work related to the Immigrant Visa, moot.
NVC, on 02/01/2010 announced the Department of State would now consider the immigrant visa immediately available when the approved petition had arrived at NVC, Stateside, instead of at the IV Unit abroad. So, beginning 02/01/2010 NVC started administratively closing the follow-up petition for the K-3 visa, when the immigrant visa petition arrived first or (virtually always) the two petitions arrived at NVC together.
The exceptions we’ve seen is when, for some reason (usually an incomplete file), the immigrant petition could not be approved by USCIS at the same time as the follow-up petition. These anomalies have been, presumably, the result of the petitioner mistakenly omitting required documentation from the immigrant visa petition package. Since the two petitions must stand alone, USCIS would approve the follow-up petition and send an “RFE” (Request for Initial Evidence) related to the immigrant visa petition.
We have a case now, where actual immigration to the USA is not wanted for another two or three years, but the multiple entry (technically) “non-immigrant” K-3 visa will fit the couple’s needs perfectly. We’ve intentionally omitted a required document from the immigrant visa petition, in the hopes USCIS will approve only the follow-up petition and hold the immigrant petition until they receive the response to their request for the omitted evidence. So far, so good. We’ll report back once we see what they ultimately do with the files at the USCIS service center in Laguna Niguel, California.