State Dept. Informs, Issues Regulations Regarding New V and K Visas

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

STATE DEPT. INFORMS, ISSUES REGULATIONS REGARDING NEW V AND K VISAS
Immigrants' Rights Update, Vol. 15, No. 3, May 10, 2001

The U.S. State Dept. has published interim regulations regarding V and K visas, two new categories of visa that were created by last year's Legal Immigration Family Equity Act (LIFE). In addition, the Justice Dept. has provided other information regarding the V visa via a news release, while the State Dept. has issued an announcement regarding the V visa application form and a notification that it will be mailing letters to potential applicants for V visas.

The V visa allows certain spouses and minor children of lawful permanent residents to live and work in the U.S. and to travel from and to this country while they wait for their immigrant visa number to become available so that they can obtain lawful permanent resident status. K visas are available to persons seeking to immigrate as spouses of U.S. citizens and on whose behalf the U.S. citizens have filed visa petitions. Congress passed the legislation to provide relief to families who face long waits for family members' immigrant visa applications to be processed.

THE NEWS RELEASE ON V VISAS

On Mar. 30, 2001, the Dept. of Justice issued a news release on the new V visa. The news release states that to be eligible for the V visa, applicants must:

be the spouse or unmarried child (under 21 years of age) of a lawful permanent resident;
have a Form I-130 (Petition for Alien Relative) filed with the Immigration and Naturalization Service on his or her behalf by the lawful permanent resident spouse or parent on or before Dec. 21, 2000; and
have been waiting for at least three years after the Form I-130 was filed for their immigrant visa number (priority date) to become available; or
be the unmarried child (under 21 years of age) of a person who meets the above three requirements.

The news release cautions that, for individuals who have been living in the U.S. without legal status for more than 180 days, departing the U.S. will make them subject to the grounds of inadmissibility related to unlawful presence. Although these bars to admission to the U.S. do not prevent eligible persons from obtaining V visa status or from being readmitted to the U.S. in V visa status after traveling abroad, the inadmissibility grounds do prevent such persons from adjusting status to lawful permanent resident status unless they obtain a waiver.

In addition, the release states that individuals who have been issued a V visa abroad and have been admitted to the U.S. may apply for work authorization by completing Form I-765 and mailing it along with their V visa application form to: U.S. INS, P.O. Box 7216, Chicago, Illinois 60607-7216.

Finally, the news release states that eligible applicants living in the U.S. must wait until after the INS publishes its V visa regulations to apply for the visa.

THE NEW V VISA FORM

On Mar. 12, 2001, the Secretary of State announced the introduction of a new form, Nonimmigrant V-visa Application (DS-3052). Effective immediately, visa applicants must use this form as a supplement to the OF-156 nonimmigrant visa application form. The DS-3052 will soon be available to the general public on the State Dept.'s Internet web site (www.state.gov).

Although the DS-3052 form instructs V visa applicants to use it in conjunction "with Form DS-156," the latter form-which will be a complete redesign of the nonimmigrant visa application form-is not yet available. Until it becomes available, applicants should use the current form, OF-156.

MAILING NOTICE

On Mar. 12, 2001, the Secretary of State issued a telegram providing notice that the National Visa Center will be mailing letters to approximately 300,000 potential applicants for V visas. Letters will be sent to individuals who have immigrant visa petitions on file and may be eligible for the V visa. The State Dept. is providing this mailing solely as a courtesy.

The letter tells recipients about the availability of the new V visa and provides information on how they may apply for it. The letter states that it is not an invitation to a specific interview. Recipients are directed to the State Dept.'s web site for additional information: www.state.gov/v-visa.html.

THE INTERIM RULE

The State Dept. published interim rules on V and K visas with a request for comments. The interim rule is effective on Apr. 1, 2001. Comments are due on June 1, 2001.

The interim rule adds a new section at 22 C.F.R. 41.86 and discusses eligibility for the V visa.

According to the statute, to obtain a V visa, an individual's application for a permanent resident visa must remain pending. However, the LIFE Act does not specifically define what it means by this. According to the interim rule, an application for an immigrant visa remains pending if the application has been filed and the immigrant visa has neither been issued nor refused.

According to the interim rule, an individual is eligible for a V visa if:

the Dept. of State or the Dept. of Justice has notified the consular officer who has jurisdiction that, on or before Dec. 21, 2000, a lawful permanent resident petitioner filed an immigrant visa petition on behalf of the individual, who is a spouse or child of the petitioner (or is a child who qualifies as a derivative beneficiary of such a petition); and
three or more years have elapsed since the petition was filed and either the petition has not been approved, or, if it has been approved, either no immigrant visa is immediately available for the individual or his or her application for adjustment of status or for an immigrant visa remains pending.

The interim rule also states that, if practicable, the consular officer must determine an applicant's eligibility for a V visa.

The preamble to the interim rule states that the processing of applications for V visas will differ from that of applications for routine nonimmigrant visas (i.e., student or tourist visas). Because applicants for V visas are intending immigrants who will remain in the U.S. indefinitely, the State Dept. has decided to apply a high evidentiary standard in issuing these visas. The standard will be similar to that used in processing applications for fiancé(e) visas. Thus, to be granted a V visa, an applicant may not be inadmissible under any of the grounds listed in section 212 of the Immigration and Nationality Act.

In addition, the interim rule states that consular officers must also determine the eligibility of individuals who were previously granted a V visa in the U.S. and wish to return to the U.S. According to the interim rule, such individuals will be exempt from the vaccination requirement, the labor certification requirement, and INA section 212's "unlawful presence in the U.S." ground of inadmissibility.

Finally, the interim rule designates the place where V visa applicants living abroad must file their petitions. Unless they obtain permission under existing State Dept. procedures that would allow them to apply at some other post, V visa applicants must apply at the consular post having jurisdiction over the underlying visa petition.

INTERIM RULE ON K VISA

The interim rule revises 22 C.F.R. 41.86 and states that an individual may be classified as a nonimmigrant fiancé(e) for purposes of applying for a K visa if:

the consular officer is satisfied that the individual is qualified for a K visa, the consular officer has received a U.S. citizen's petition to confer nonimmigrant status as a fiancé(e) on the individual, and the INS has approved the petition or has notified the consular post of such approval;
the consular officer has received the individual's sworn statement of ability and intent to marry the petitioner within 90 days of arrival in the U.S.; and
the individual has met all other qualifications necessary to receive a nonimmigrant visa and also qualifies for an immigrant visa.

The rule states that the consular officer must, insofar as is practicable, determine the individual's eligibility for a nonimmigrant visa, except that the individual is exempt from the vaccination and labor certification requirements under INA section 212.

Rules pertaining to the spouse. An individual is classifiable as a nonimmigrant spouse when all of the following requirements are met:

The consular officer is satisfied that the individual is qualified for a K visa and the consular officer has received INS approval for the petition that was filed in the U.S. by the U.S. citizen spouse of the immigrant; and the INS has approved the petition pursuant to INA section 214(p)(1).

If the individual married the U.S. citizen outside the U.S., the individual must apply in the country where the marriage took place. If there is no consular post in that country, the individual may apply at a consular post designated by the deputy assistant secretary of state for visa services.

If the marriage took place in the U.S., the individual must apply in the country where the individual resided prior to entering the U.S.

The individual must meet all applicable requirements in order to receive a nonimmigrant visa. The consular officer, insofar as practicable, must determine the eligibility of an individual to receive a nonimmigrant visa. This means that, with the exception of the vaccination and labor certification requirements, the individual is subject to the INA section 212 grounds of inadmissibility.

Rules pertaining to the child. An individual may be classified for a K visa if the consular officer is satisfied that the individual is the minor child of an immigrant classified for the K visa and is accompanying or following to join the principal immigrant.

As with a spousal petition, except for the vaccination and labor certification requirements, the child is also subject to inadmissibility grounds of INA section 212.

66 Fed. Reg. 19,390-94 (Apr. 16, 2001).