THE ABC'S OF IMMIGRATION - INS ISSUES V VISA REGULATIONS

This week the INS finally implemented the new V nonimmigrant status to allow certain spouses and minor children of lawful permanent residents (“LPR”s) to reside and work in the United States while waiting to obtain immigrant status. This provision is one of several immigration benefits provided by the Legal Immigration Family Equity Act (“LIFE Act”) that was enacted on December 21, 2000. The regulation that implements the V provision was published in the Federal Register on September 7, 2001.

The LIFE Act made numerous important changes in immigration law, and created a new visa category, the V visa.  The V visa was created in order to provide an interim solution to the problem of a long backlog of immigrant visa applications for spouses and children of lawful permanent residents, who have to wait many years for a visa to become available for them.

This visa is to be used by alien spouses and children of permanent residents who have submitted with the INS an immigrant visa petition and (1) whose applications for immigration have been pending for at least three years OR (2) whose petitions have been approved, 3 years or more have elapsed since their filing date and an immigrant visa is not immediately available to the applicant because of a waiting list of applicants for visas or the applicant’s application for an immigrant visa or for adjustment of status remains pending.

To be eligible for a V visa, the applicant must be the beneficiary of an application for an immigrant relative (under a family based second preference category (F2A)) that was filed on or before December 21, 2000.  The petition must have been pending for three years at the time the V visa application is made.  However, if the petition has been approved, the person can still obtain a V visa if the petition was filed more than three years ago and there is no immediately available immigrant visa, a pending application for an immigrant visa, or a pending application for adjustment of status. 

A person eligible for V visa may apply for it at a consular office abroad or if already present in the U.S. may apply to the INS.

V visa holders may obtain employment authorization.  To obtain such authorization, applicants should file a completed Application for Employment Authorization (Form I-765) and 0 application fee with the INS.

If the qualifying application (for an immigrant visa or adjustment of status) is denied, the V visa status shall terminate 30 days after the date of the denial.

Applicants for a V visa who are outside the U.S. at the time of the application will not be subject to the 3 and 10-year admission bars on reentering the U.S. following a period of unlawful presence.  Applicants who are in the U.S. are likewise not subject to the 3 or 10-year admission bars, nor are they subject to two other grounds of inadmissibility, entering the U.S. without inspection and entering the U.S. without the proper documentary requirements.

However, according to the INS regulation that implements the new V nonimmigrant classification, the bars to admissibility due to unlawful presence in the U.S. (3 or 10 years) still apply for the purposes of obtaining an immigrant status for the applicant (in applying for adjustment of status to LPR or for an immigrant visa), even though they do not apply for the purposes of obtaining a V visa. Persons who have been unlawfully present in the U.S. for more than 180 days and depart the country may be subject to the 3 or 10 year admission bars, unless they apply for and obtain a waiver from the INS (for example, if a person accrued more than 1 year of unlawful presence in the U.S., travels abroad and is readmitted as a V nonimmigrant, when that person departs the U.S., they trigger the 10 year bar to admission when they later apply for an immigrant visa or LPR, so they are unable to adjust status for 10 years, unless an individual waiver for that ground of inadmissibility is granted).

V visa holders are eligible to apply for adjustment of status (permanent residency) when an immigrant visa becomes available (immediately available to them at the time their application is filed), where the applicant was physically present in the U.S. at any time between July 1, 2000 and October 1, 2000.  However, if after obtaining the V visa, its holder ever falls out of valid status (other than through no fault of the holder or for technical reasons), they will not be allowed to apply for adjustment of status.  The person must include a 00 penalty fee if they would be subject to the fee under section 245(i).

When a V visa holder was physically present in the U.S. at any time between July 1, 2000 and October 1, 2000, his status may be adjusted to permanent residence if (1) the applicant applies for such adjustment (2) the applicant is eligible to receive an immigrant visa and is admissible to the U.S. for permanent residence (not including unlawful period) (3) an immigrant visa is immediately available to the applicant at the time the application is filed.

Persons living in the U.S. and wish to apply for the V visa are required to submit the following documentation:

• A completed Application to Extend/Change Nonimmigrant Status (Form I-539) along with its Supplement A and required documentation and fees
• A completed Medical Examination (Form I-693)

The INS will give V status holders (or applicants that changed to the V status) a maximum 2-year period of admission. The period of the V status may be extended, if the applicant continues to remain eligible for V status.

In cases where an eligible spouse or child has an immigrant visa number available, but has not yet applied for an immigrant visa abroad or for an adjustment of status to LPR, the INS will grant them a one-time 6 month extension of the V status in order to provide them time to file the appropriate application when their V status is expiring.

Finally, the LIFE Act classifies the V status to have a dual intent. This means that a V visa holder may be considered a nonimmigrant despite the fact that they are intending immigrants with a filed application for adjustment of status or an immigrant visa (Therefore, they need not obtain advance parole from the INS to protect their pending applications for adjustment of status from being considered abandoned when they depart the U.S.).