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U.S. Citizenship and Immigration Services has decided that the agency
will no longer consider non–U.S. citizens who hold V‑2 or V‑3
nonimmigrant visas to lose their eligibility for this status when they
turn 21 years of age. The new policy was announced in a Jan. 10, 2005,
memorandum by Terence M. O’Reilly, CIS director of field operations.
The V visa was established as part of the Legal
Immigration Family Equity Act of 2000 (LIFE Act). It allows spouses and
children of lawful permanent residents, as well as their derivative
beneficiaries, who are beneficiaries of family-based second preference
immigrant visa petitions that were filed on or before Dec. 21, 2000, and
have been pending for at least three years to have a lawful status while
waiting to become LPRs. V‑1 status is for the spouse of an LPR, V‑2 for
a child beneficiary of an LPR, and V‑3 is for a derivative child of a
V‑1 or V‑2 beneficiary. In promulgating regulations to implement the
statute, the former Immigration and Naturalization Service provided that
noncitizens would lose their V-2 or V-3 upon turning 21 years of age.
CIS, which is a successor to the former INS, has now decided to reverse
this decision and adopt a “no age-out” policy.
In adopting the new policy, the agency has agreed
to apply nationwide the recent ruling of the U.S. Court of Appeals for
the Ninth Circuit in Akhtar v. Burzynski, 383 F.3d 1193 (9th Cir.
2004). In Akhtar, the court found that the age-out policy of the
regulations conflicts with congressional intent and policy in creating V
status. The whole purpose of V status was to reunite families and allow
beneficiaries to live and work in the United States while waiting for
immigrant visas.
Memorandum
from Terrence M. O’Reilly, Director, Field Operations USCIS, to Robert
Cowan, Director, National Benefits Center, Jan. 10, 2005.
By
Linton Joaquin, NILC
executive director
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