Anyone who wants to bring a spouse to the U.S. must first file an I-130 Petition for an Alien Relative. This applies to those who intend for their spouse to enter on the I-130 and to those who will elect to file a K-3 petition in order to shorten the waiting time for the spouse’s entry to the U.S.

Once the receipt notice for the I-130 is received (this usually takes about two weeks) a K-3 visa petition may be filed as a means to request the government to allow the spouse to enter the U.S. while the more time-consuming I-130 petition is pending. The two petitions are rather similar in terms of forms and documentation, but they have two completely separate lives as they go through processing, and there are different rules that apply to each (for example, the visa interview for an I-130 must take place in the beneficiary’s home country, whereas the K-3 visa interview must take place in the country of marriage). The I-130 petition used to take two to three months longer to process than the K-3 (mostly due to longer and more complicated processing at the National Visa Center after USCIS approval) but ever since the Guangzhou Consulate was added in February 2009 to the NVC Pilot Program for Electronic Processing of immediate relative visa petitions, the K-3 advantage has been reduced significantly. In addition, the Guangzhou Consulate disfavors the K-3 visa and advocates changes to NVC processing that will effectively kill any time advantage that the K-3 currently has over the K-1. See my blog entry for more on this subject.

Unmarried children under 21 years of age qualify for “derivative status” from parent, gaining the same rights as the parent from the same petition, and may travel to the U.S. with the parent upon visa issuance. However, a derivative child who was 18 or older at the time of the parent’s marriage to the U.S. citizen can NOT obtain permanent residence status in the U.S. Such children must leave the U.S. after the two year K-4 visa expires (unless they qualify for another visa, such as a student visa) and wait for the immigrant parent to gain permanent residency and be able to petition for the child. Even then, there is a several year wait for a priority number before being able to receive the visa.

An I-130 visa for a spouse may be filed directly with the USCIS office of the Guangzhou Consulate. This typically greatly reduces the waiting time to receive the visa, requiring in most cases less than two months from beginning to end. In such cases, the petitioning US citizen gets married overseas (or is already married) and files the same I-130 petition with the Consulate that normally is sent to the USCIS in the U.S. A CIS officer in the Consulate reviews the file, and if it's deemed “clearly approvable”, the case is forwarded to the Immigrant Visa Unit within the Consulate for interview scheduling. The US citizen does not have to remain “in country” at all after this filing takes place.

The USCIS office in Guangzhou has typically required a showing of at least six months of time spent in China during the preceding three years, although this practice is subject to change without notice.

A person entering the U.S. on an I-130 receives his or her conditional permanent residence status at the airport or border entry point. If a spouse chooses to enter on a K-3, however, the spouse must file an I-485 Application to Adjust Status to obtain lawful permanent resident (“LPR”) and to advance their integration into American society (this procedure is also known as applying for a “green card”). The application is form and document intensive in much the same way that the I-130 and K-3 petitions are. The sponsor of the spouse must meet the somewhat stricter I-864 requirements for minimum income to support the foreign national. The final decision as to whether the foreign born spouse qualifies for LPR status is made by an immigration official during the adjustment of status interview. Almost all married couples are obliged to attend the interview to convince the immigration authorities that their relationship is based on real love and that they have a bona fide marriage. If you successfully pass the interview, your spouse will receive the actual green card in mail within about 30-60 days.

K-3/K4 visa holders are allowed to work in the United States while the alien relative petitions are pending. Employment authorization may, as a matter of law, be provided by border enforcement at the time of entry into the U.S., but in most cases it is not, and the beneficiary must file a form I-765 application for employment authorization after entry. It’s usually a good idea to file for the employment authorization document (“EAD”) even if the beneficiary doesn’t intend to work immediately, because the EAD is often required to obtain a social security card which in turn is necessary to receive a driver’s license in most states.

The K-3 and K-4 visas are multiple entry visas, which means that there is no need to apply for any additional permission to travel outside the United States while the application for permanent residence is pending. A K-3/4 visa holder may travel outside the U.S. for two years without worry about needing Advance Parole or other travel document to return to the U.S.