Q: WHICH TYPE OF VISA SHOULD THE CHILD OF MY FIANCEE OR SPOUSE USE TO ENTER THE USA?

A: The child or children of a fiancée or spouse may enter the United States on a derivative visa. This means that a fiancée who enters the US on a K-1 Fiancée visa will be able to bring her child on a K-2 visa, a derivative visa of the K-1. For a foreign citizen spouse who enters the United States on a K-3 visa a K-4 visa will be used to bring in the child.

Q: DO I NEED TO HAVE SEPARATE IMMIGRATION PETITIONS FILED ON BEHALF THE CHILDREN OF MY FIANCÉE OR SPOUSE?

A: Children of a fiancée or foreign spouse do not need to have a separate K-1/K-3 petition filed on their behalf. However, the US Citizen Spouse should make sure to name all of the fiancée or spouse’s children on the K-1/K-3 petition. A failure to name all of the fiancée/spouse’s children on the petition could result in difficult immigration experience for the children.

A separate I-130 immigrant visa petition must be filed for each of the fiancée/spouse’s children before they will be eligible to obtain permanent residence. To adjust their status in the United States, the children must file the I-485 form to register their permanent residence. The children must be under 21 years of age and unmarried in order to obtain permanent residence as a derivative of their foreign national parent. For the K visas no separate petition is necessary for the fiancée/spouse’s children.

Q: WHAT IF I DON’T NAME THE CHILDREN OF MY LOVED ONE ON THE K-1/K-3 VISA PETITION?

A: A child of a fiancée or foreign national wife who was not named on the K1/K3 petition is still entitled to a K2/K3 travel Visa provided the child can show that they are in fact the unmarried child of the K1/K3 visa holder. The US Embassy in the child’s home country will ask for a letter from the US Citizen fiancé/spouse acknowledging that the fiancée/spouse has children.

Q: ARE ALL OF MY FIANCEÉE/SPOUSE’S CHILDREN ELIGIBLE FOR A CHILD VISA?

A: All children under the age of 21 and unmarried are eligible for derivative visas of your foreign national fiancée or spouse. If the children are over the age of 21 or married they will not be eligible for a child visa. Children over the age of 21 may still be considered children for immigration purposes so long as the petition in question was filed prior to the child’s 21st birthday.

Q: HOW SHOULD THE K-2/K-4 CHILD ADJUST THEIR STATUS IN THE US?

A: The US Citizen must file an I-130 petition on behalf of the child in order for the child to be able to adjust his/her status to permanent residence. If the U.S. Citizen doesn’t file the I-130 petition then the spouse may do so as soon as she is a lawful permanent resident of the USA, but the child would then have to wait for a visa number, which could take a great deal of time.

Please note, the parent will no longer be in K-1/K-3 status, after adjusting to legal permanent residence, hence, the child will not be in lawful K-2/K-4 status, since this is a derivative classification and only exists so long as the foreign national fiancée/spouse holds his/her K-1/K-3 Visa.

If the child stays in the United States, without adjusting status to permanent residence, after the fiancée/spouse has adjusted status to permanent residence, the child will be deemed out of status and thus in the country unlawfully.  This can cause many problems, not least of which could be deportation. It is best if the US Citizens files an I-130 to adjust the child’s status as soon as possible.

This information is made available to provide general information and a general understanding of the law, not to provide legal advice about specific situations or problems. The information conveyed in this article should not be construed as a substitute for legal advice from a competent licensed professional in your jurisdiction.