by Neil Lewis, Esq.

The LIFE Act, passed during President Clinton's last months in office, did like the President, and promised to do a great many things. One of the things the Act promised to do, via the K-3 visa, was to make things easier for U.S. Citizens who were filing for the lawful permanent residence of their wives and minor children. The promise of the K-3 has not been realized.

Parents, wives and minor children of U.S. citizens are called, within the parlance of the Immigration & Naturalization Service, immediate relatives. They are called "immediate" relatives because they are immediately eligible to become lawful permanent residents of the U.S. In this article we will work with only spouses of U.S. citizens.

When you are dealing with the Immigration & Naturalization Service, however, "immediate"does not necessarily mean immediate. Two years ago my advice to those U.S. citizens considering marrying someone from another country, was consistent and correct. When given a choice, never marry a person from abroad when you can get engaged and have them enter the U.S. as your fiancé. A fiancé stood to enter the US within three to six months of submission of a properly filed petition. If you married the person and then applied for their permanent residence from the U.S. using a form I-130 (as many couples did), the Immigration & Naturalization Service and the State Department could take one year or more to allow the entry of your spouse.

The previous system did not take into account the different cultures that exist within the U.S. today. Cultural dictates often demand that a U.S. citizen-alien couple be married in the alien's home country, surrounded by extended family and friends. The fiancé petition is not a viable option for these people. Immigration & Naturalization Service policy and processing limitations can cause a one year separation between two newlyweds. Hardly what a U.S. citizen expects from his government.

The LIFE Act intended to treat the spouses of U.S. citizens at least equal to the way they treated fiancés. Congress created a new visa, called a K-3, which was intended to allow the spouses of U.S. citizens to enter the United States while they waited for the approval on the previously filed form I-130. But the mechanism created to allow the issuance of K-3 visas is confusing and cumbersome at best.

Initially, as before, the U.S. citizen must file an I-130 with the appropriate Regional Service Center (for us, the Texas Service Center). After receiving the receipt notice, the U.S. citizen must then file a fiancé petition for his spouse with a special Immigration & Naturalization Service Service Center set up in Chicago. Once that fiancé petition has been approved, the appropriate U.S. Embassy is cabled, and finally the spouse of the U.S. citizen may begin to apply for entry to the U.S. My question is-Why is the extra form necessary? Why can't the form I-130 receipt notice be used to trigger notification of the embassy and to begin the entry process? The Immigration & Naturalization Service set up a whole new service center and bureaucracy for something that could have been accomplished within the existing process. It boggles the mind.

Predictably, the Immigration & Naturalization Service has not done a good job getting the K-3 procedure out to the people who need to use it. Anyone who has called the 1-800 Immigration & Naturalization Service information number can understand that there is virtually no way that the information officers will be able to explain the above procedure in a way that is understandable to the average caller. This has resulted in lost time and long separation for some families.

I had a discussion a few months ago about this very matter with a potential client. He insisted that the proper procedure to follow was to file the forms I-129 and I-130 with the Service Center in Chicago. Despite my assurances that he was wrong, he went ahead and filed both forms with Chicago. Six weeks later he received both forms back with a request that he follow the correct procedure and file the form I-130 first with the correct Service Center, and then follow it with the form I-129 to Chicago.

It is disappointing that in the year 2002 the Immigration & Naturalization Service still operates in this manner. They receive a new directive from Congress, yet, instead of modifying current procedures to accomplish their goal, they insist upon creating a new application process and a new Service Center (!) to give the new visa life. The goal of the new visa, easier and quicker entry for wives and minor children of U.S. citizens, has not been realized, and my advice from two years ago is still sound now. When given a choice, get engaged to your foreign fiancé, apply for the fiancé visa, and get married here. One form, one Service Center, relatively quick entry. In time the K-3 visa may be fixed. Until it is, avoid it.

Nothing in this article is intended to be legal advice. If you have questions about this article please contact Neil F. Lewis, Esq. at (813) 226-2144.