R 020229Z NOV 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
HQ USUSCIS WASHDC
UNCLAS STATE 190928
VISAS - INFORM CONSULS
E.O. 12958: N/A
SUBJECT: NEW NONIMMIGRANT 41.81(K) NOTES
SUMMARY: Attached are recently revised Notes to 22 CFR 41.81, incorporating the latest interpretive and procedural materials relating to not only K-1s and 2s, but the new K-3s and 4s.
Sec. 41.81 Interpretive Notes
N1 Classification under INA 101(a)(15)(K)
N1.1 Classification Under INA 101(a)(15)(K)(i)
An alien may be classified as a K-1 if he or she is the beneficiary of an approved I-129F, Petition to Classify Status of Alien Fiance(e) for issuance of Nonimmigrant Visa. If the consular officer is satisfied that the alien is qualified to receive such a visa, the alien may be admitted to the United States for the purpose of concluding a marriage to the petitioner within a 90-day period.
N1.2 Classification Under INA 101(a)(15)(K)(ii)
Pub. L. 106-553 established a new category of nonimmigrant visa for the spouses of U.S. citizens who await approval of an I-130 petition to enter the United States as nonimmigrants. The Department and the Service have used the symbol ''K-2'' for the children of K-1''s since the inception of that category. The symbol for the beneficiaries of this new category will therefore be K-3.
N1.3 Classification Under INA 101(a)(15)(K)(iii)
This provision is for the children of either a K-1 or a K-3. An accompanying or following to join child (as defined in INA 101(b)(1)) of a K-1 is entitled to K-2 derivative status, as noted in N1.2 above. The child of a K-3 who is accompanying or following to join a K-3 principal alien is entitled to K-4 derivative status.
N2 Filing of Form I-129F, K Visa Petition
Because INA 214(d) uses the language "petition filed in the United States," a K visa petition (Form I-129F, Petition to Classify Status of Alien Fiance or Fiancee for Issuance of Nonimmigrant Visa) may not be filed with, or approved or denied by, a consular officer or an immigration officer stationed abroad. All K visa petitions must be filed with the USCIS district office having USCIS jurisdiction over the petitioner''s current or intended residence in the United States. If the citizen fiance(e) is abroad at the time the K visa petition is filed, the consular officer should advise the petitioner to send the completed petition, supporting documents and appropriate fee to the USCIS Service Center with jurisdiction over his or her state of intended residence after marriage. The USCIS Internet website (www.uscis.gov) has complete information on Service Center jurisdiction. After the petition is approved, USCIS will transmit it to the appropriate post.
N3 Acceptance of K Visa Applications
a. K-1 and K-2 visas must be processed and issued only at immigrant visa issuing posts. If a nonimmigrant visa issuing post receives a K-1 visa petition, it should forward the petition to the immigrant visa issuing post which covers the consular district, unless the post has been specifically authorized to process K visas.
b. Subject to (c) below, applicants for K-3 or K-4 visas should also be processed at immigrant visa posts, as K-1''s are, but in some cases may have to be processed at a consular post that normally issues only nonimmigrant visas, because there is no immigrant visa post in the country.
c. The statute requires that a K-3 visa for an applicant who has married a U.S. citizen outside the United States be issued by a consular officer in the foreign state in which the marriage was concluded. However, if no visa-issuing post is located in that country, the K-3 applicant should apply at the consular post designated to handle "homeless" immigrant visa cases for that country. A K-4 visa applicant may be issued a visa at any immigrant visa issuing post, or, in the circumstances noted above, at a nonimmigrant post if there is no immigrant visa issuing post in the country.
N4 Documentary Requirements
a. The following are documentary requirements required a K-1 or K-3 visa:
(1) The applicant must undergo the standard IV medical examination by a panel physician;
(2) An NCIC namecheck must be done by NVC for each applicant;
(3) The applicant must present police certificates, if required, and
(4) The applicant must present proof of relationship to the petitioner at the time of the interview.
b. K-1 and K-3 applicants are subject to INA 212(a)(4) and must demonstrate to the consular officer''s satisfaction that they will not become a public charge. The Form I-864 cannot be required for that purpose. Applicants may submit a letter from the petitioner''s employer or evidence that they will be self-supporting. The Form I-134 affidavit of support may be required when the consular officer deems it useful.
N5 Filing a Petition for Classification Under INA
N5.1 Petition for Classification under 101(a)(15)(K)(i)
(See Sec. 41.81 N2 for filing requirements.
N5.2 Petition for Classification Under INA 101(a)(15)(K)(ii)
An alien seeking admission under INA 101(a)(15)(K)(ii) must be the beneficiary of a K-3 petition filed by a U.S. citizen in the United States. For the present, the Service is using the usual I-129F (fiance(e) petition) for this purpose. As noted in 41.81 N3, if the couple married outside the United States, the visa must be issued by a consular officer in the foreign state in which the marriage was effected.
N5.3 K-2 or K-4 Child of K-1 or K-3
The unmarried child of a K-1 or K-3 applicant does not require a petition. The applicant needs only to demonstrate that he or she is the ''child'' (as defined in INA 101(b)(1)) of an alien classified K-1 or K-3. K-2 or K-4 applicants are required to sign a form apprising them that entering into a marriage prior to obtaining adjustment of status will render them ineligible for adjustment as IR-2 or CR-2 immigrant visa applicants.
N6 Aliens Classified K-1 or K-2
N6.1 Action When Petition Received
Upon the receipt of an approved K-1 visa petition the post should send a letter to the beneficiary outlining the steps to be taken to apply for a visa. If the initial 4-month validity of a petition has expired without a response to the post''s letter, the consular officer should send a follow-up letter to the beneficiary, with a copy to the petitioner, and request a reply within 60 days. If the 60-day period passes without a response from either party or if the response indicates that the couple no longer plans marriage, the case is to be considered abandoned, the petition is to be retained at the post for a period of one year and then destroyed.
N6.2 Validity of a K-1 Petition
An approved K-1 visa petition is valid for a period of 4 months from the date of USCIS action and may be revalidated by the consular officer any number of times for additional periods of 4 months from the date of revalidation provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary''s admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intentions of the couple, particularly the intentions of the petitioner in the United States. If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, the petition should be returned to the approving office of USCIS with an explanatory memorandum. [See Sec. 41.81 PN7 for revalidation procedure.]
N6.3 Reissuance of K-1 Visa
If a K-1 visa, valid for a single entry and a 6-month period, has already been used for admission into the United States and the alien fiance(e) has returned abroad prior to the marriage, the consular officer may issue a new K-1 visa, provided that the period of validity does not exceed the 90th day after the date of initial admission of the alien on the original K visa and provided also that the petitioner and beneficiary still intend and are free to marry. The alien''s return to the United States and marriage to the petitioner must take place within 90 days from the date of the original admission into the United States in K-1 status.
N6.4 Petitioner and Beneficiary Must Have Met
USCIS regulations [8 CFR 214.2(k)(2)] require that the petitioner and the K-1 beneficiary have met in person within two years immediately preceding the filing of the petition. At the director''s discretion, this requirement can be waived if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the beneficiary''s foreign culture.
N6.5 Marriage Bona Fides
If a consular officer finds that the fiance(e) or marital relationship is not bona fide but is a sham entered into solely for immigration benefits, post should return the K-1 or K-3 petition to the approving USCIS office under cover of a memorandum detailing the specific, objective facts giving rise to the post''s conclusion.
N6.6 Additional Factors That May Raise Questions in K-1 Cases
a. There are several possible discrepancies between the facts stated on the petition and the actual circumstances of the K-1 beneficiary which might lead the consular officer to question whether the relationship is bona fide or which might cause the petitioner to choose not to go forward with the marriage. These include having one or more children not named in the petition, or a prior undisclosed marriage (even if it has been annulled or ended by divorce or death), or, in the case of a fiancee, a current pregnancy.
b. Discovery of a ground of ineligibility of the K-1 applicant raises another issue of the petitioner''s awareness of all of the factors associated with the fiance(e).
c. Consular officers should use their discretion in determining whether to return the K-1 petition to the Service in such cases. They should, however, first solicit from the petitioner information as to whether s/he was aware of the particular circumstance(s) and whether, in light thereof, s/he still wishes to proceed with the proposed marriage. If satisfied in this regard, consular officers need not return the petition.
d. Consular officers should return the K-1 petition to USCIS for reconsideration if not satisfied with respect to thebona fides of the relationship or if the petitioner indicates that he/she no longer intends to go forward with the marriage.
N6.7 Multiple Petitions Approved for Same K-1 Beneficiary
In instances where more than one U.S. citizen fiance(e) has filed visa petitions on behalf of the same alien and more than one K-1 visa petition has been approved for the same beneficiary, the consular officer must suspend action and return all petitions with a covering memorandum to the USCIS district director who approved the last petition so that the petition approvals may be reviewed.
N7 Termination of a K Visa Petition Approval
USCIS regulations, 8 CFR 214.2(k), provide that the death of a petitioner or written withdrawal of the petition prior to the arrival of the beneficiary in the United States automatically terminates the approval of the petition. The consular officer should return the petition to the approving USCIS office with an appropriate memorandum.
N8 Former Exchange Visitor and INA 212(e)
Before a K visa may be issued to an applicant who is a former exchange visitor and subject to the provisions of INA 212(e) the applicant must establish that the requirements of INA 212(e) have been fulfilled or that a waiver has been obtained. [See 22 CFR 40.202(b) and Sec. 40.202 Notes.]
N9 Waiver Availability for Applicants Ineligible under INA 212(a)
A K visa is a nonimmigrant visa, and therefore K nonimmigrants are generally eligible for INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to legal permanent resident. To determine whether a waiver is available for a K applicant, the consular officer must therefore first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of American citizens, under either INA 212(g), (h), (i), 212(a)(9)(B)(v), 212(d)(11) or (12) or similar provisions. [For a more complete list, see the abridged list of ineligibilities and immigrant waivers at 40.6.]
N9.1 Visa Refusal-No Waiver Possible
If the K visa applicant is ineligible for a visa on an INA 212(a) ground for which no immigrant waiver is or would be possible after marriage to the petitioner, then the case should not be recommended for an INA 212(d)(3)(A) waiver and no waiver request should be submitted to USCIS. [See 22 CFR (9 FAM) 40.301.]
N9.2 INA 212(d)(3)(A) Waiver for K-1 Fiance(e) Who Would Qualify for a Waiver if Married, or for K-3 Spouse
a. If it is determined that the K visa applicant is ineligible to receive a visa under INA 212(a) but that the ineligibility could be waived after (or as a result of the) marriage to the petitioner, the consular officer should assist the applicant in completing Form I-601, Application for Waiver of Grounds of Excludability, and submit simultaneously both the Form I-601 (with the required fee) and Form OF-221, Two-way Visa Action Request & Response, to the appropriate USCIS office abroad with the recommendation concerning the granting of an INA 212(d)(3)(A) waiver. (If the case involves a K-1 fiance(e), before beginning that waiver process the consular officer should first satisfy him/herself that the petitioner was or is aware of the ineligibility and still wishes to pursue the marriage. If not, the petition should be returned to USCIS and no waiver process commenced.) Consular officers should follow this same general procedure whether the ineligibility is on medical or non-medical bases, while taking into account any variant procedure required in certain medical cases as set forth in 22 CFR 40.11 PN2.
b. When an alien fiance(e) of a person in the U.S. military has been found ineligible and it appears that the benefits of INA 212(h) or (i) might be available once the marriage has taken place, the consular officer should discuss the ineligibility and the waiver possibility with the military officer responsible for granting permission to marry, and point out that USCIS cannot make advance determinations regarding a waiver.
N10 Vaccination Requirements for K Visa Applicants [See 41.108 Notes]
N11 Alternative Classification
The inclusion of INA 101(a)(15)(K) in the nonimmigrant classifications is not intended to prohibit an alien fiance(e) of a U.S. citizen from applying for and obtaining an immigrant visa or a nonimmigrant visa under another classification, if the alien can qualify for an alternative classification. For example, an alien proceeding to the United States to marry a U.S. citizen may be classified B-2, if it is established that following the marriage the alien will depart from the United States. [See Sec. 41.31 N11.1.]
N12 Child of Alien K-1 Fiance(e)
USCIS and the Department have agreed that the child of a K-1 principal alien may be accorded K-2 status if following to join the principal alien in the United States even after the principal alien has married the American citizen fiance(e), and acquired lawful permanent resident status. However, the cutoff date for issuance of a K-2 visa is one year from the date of the issuance of the K-1 visa to the principal alien. After one year, and provided that the alien qualifies, the filing of an immediate relative or second preference petition would be required.