K1 visa

[St3phsm07 2]

Can a legal resident apply for a k1 visa?

[jd_malachi 59]

As far as I know you need to be a US citizen to apply for a K1 visa for a foreign fiance

[St3phsm07 2]

Just now, jd_malachi said:

As far as I know you need to be a US citizen to apply for a K1 visa for a foreign fiance

But a green card holder can petition for spouse correct? Are  minor children able to come along with spouse on a Cr1 visa or would they have to be filed separately?

[jd_malachi 59]

I know a green card holder can petition for a spouse. I know that you can file for minor children to accompany a spouse but I am not familiar with the application process.

[powerpuff 6,723]

 Not for K-1. 
 

Permanent residents can sponsor foreign spouses. Their children (unmarried, under 21) are automatically included (if they wish) as derivative beneficiaries. You name them on the initial petition and later on they will have to fill in their own independent applications when the time comes.

[Ryan H 3,812]

Moved from K1 Process & Procedures to Brining Family Members of Permanent Residents to America forum.

[HRQX 4,145]

19 hours ago, St3phsm07 said:

But a green card holder can petition for spouse correct?

Not always. It depends on if the LPR got the status through marriage and if so how many years have passed since the LPR got the status. See INA 204(a)(2):

Quote

(A) The Attorney General may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless-

(i) a period of 5 years has elapsed after the date the alien acquired the status of an alien lawfully admitted for permanent residence, or

(ii) the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws.

In this subparagraph, the term "spousal second preference petition" refers to a petition, seeking preference status under section 1153(a)(2) of this title, for an alien as a spouse of an alien lawfully admitted for permanent residence.

(B) Subparagraph (A) shall not apply to a petition filed for the classification of the spouse of an alien if the prior marriage of the alien was terminated by the death of his or her spouse.

 

19 hours ago, St3phsm07 said:

on a Cr1 visa

CR-1 is not the category. The correct category is F2A - spouses and children (unmarried and under 21 years of age) of lawful permanent residents.

19 hours ago, St3phsm07 said:

or would they have to be filed separately?

It depends on how soon the LPR is eligible for citizenship and if the LPR would want to go through naturalization. If the LPR becomes a US citizen before the children immigrate, then new separate petitions are required for each of them. If the LPR doesn't naturalize, then the already filed petition is enough for all of them: https://travel.state.gov/content/travel/en/us-visas/immigrate/national-visa-center/immigrant-visas-processing-general-faqs.html

When I filed a petition for my relative I was a Lawful Permanent Resident (green card holder). I recently became a U.S. citizen. How does this affect my family members?

If you filed a petition for your spouse and/or children when you were a lawful permanent resident (LPR) and you are now a U.S. citizen, the type of immigrant visa that your family members can receive will change. When you become a U.S. citizen, you must submit proof of citizenship to the National Visa Center (NVC) so they can update your family member’s visa category. Scan and save one of the below items as a PDF or JPG file. Then send it as an attachment to Public Inquiry Form:

• A copy of the biodata page of your U.S. passport; or
• A copy of your certificate of naturalization.

Effect on spouses and minor children: If you filed a petition for your spouse or minor children (under age 21 and unmarried) while you were an LPR, the visa category was family second preference (F2A). When you become a U.S. citizen, NVC will upgrade the petition to an immediate relative (IR) visa category. This benefits your immigrating family member(s) because there are no limits on the number of visas that can be issued each year in the IR categories.

• Important: If the family second preference (F2A) petition that you filed for your spouse included your minor children, now that you are a U.S. citizen you must file new and separate petitions for each child. This is because children cannot be included as “derivative applicants” on a parent’s immediate relative (IR) visa or petition. (This is different from the family second preference petition, which allows minor children to be included in their parent's petition.)
• Children born abroad after you became a U.S. citizen may qualify for U.S. citizenship. They should apply for U.S. passports at the U.S. Embassy/Consulate. The consular officer will determine whether your child is a U.S. citizen and can have a passport. If the consular officer determines your child is not a U.S. citizen, the child must apply for an immigrant visa if he/she wants to live in the United States.

Effect on adult children: If you filed a petition for your unmarried adult children (age 21 or older) when you were an LPR, NVC will change the visa category from family second preference (F2B) to family first preference (F1). However, under a federal law called the Child Status Protection Act (CSPA), visa applicants can “opt out” of conversion to the F1 visa category and remain an F2B visa applicant. This may be beneficial because sometimes the wait time for an F2B visa is shorter than the wait time for an F1 visa. When you naturalize and become a U.S. citizen, you should check the Visa Bulletin to see if it would be helpful for your adult unmarried child to remain in the F2B category. (Applicants keep the priority date of their F2B petition when it converts to the F1 visa category.) Applicants who want to opt-out of conversion to the F1 category must submit a request using these guidelines:

• Applicants whose case is at NVC should submit requests using NVC’s online inquiry form. NVC will forward the request to USCIS and change the visa category back to F2B upon receipt of USCIS’s approval.
• Applicants whose case is at a U.S. Embassy or Consulate overseas should ask the embassy to submit a request on their behalf. The consular officer will forward the request and adjudicate the visa application in the F2B category only upon receipt of USCIS’s approval.

Please note that the process to apply for a visa does not differ between the F2B and F1 categories. Visa applicants still need to pay the required fees, complete a visa application, and submit the required civil and financial documents. The only difference is in when their priority date becomes “current,” which is what allows a consular officer to adjudicate and issue an immigrant visa.

Edited February 7, 2021 by HRQX