DOS Updates FAM Regarding K Visas

R 020229Z NOV 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH BELGRADE
POUCH DUSHANBE
POUCH NDJAMENA
POUCH PESHAWAR
POUCH LAHORE
POUCH JAKARTA
POUCH SURABAYA
HQ USINS WASHDC

UNCLAS STATE 190928


VISAS - INFORM CONSULS

E.O. 12958: N/A
TAGS: CVIS
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 INS district office having INS 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
INS Service Center with jurisdiction over his or her state
of intended residence after marriage. The INS Internet
website (www.uscis.gov) has complete information on
Service Center jurisdiction. After the petition is
approved, INS 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
101(a)(15)(K)

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 INS 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 INS 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

INS 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 INS 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 INS
for reconsideration if not satisfied with respect to the
bona 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 INS
district director who approved the last petition so that
the petition approvals may be reviewed.

N7 Termination of a K Visa Petition Approval

INS 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 INS 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 INS. [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 INS 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 INS 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 INS 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)

INS 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.

POWELL