INS Issues Interim Rule to Implement V-Visa Provision of LIFE Act

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS ISSUES INTERIM RULE TO IMPLEMENT V-VISA PROVISION OF LIFE ACT
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

The Immigration and Naturalization Service has issued an interim rule to implement the provision of the Legal Immigration Family Equity Act of 2000 (LIFE Act) that created a new V nonimmigrant classification for certain spouses and children of lawful permanent residents. The U.S. State Dept. previously issued regulations for applicants for V visas outside the United States (see "State Dept. Informs, Issues Regulations Regarding New V and K Visas," Immigrants' Rights Update, May 10, 2001, p. 3); the INS regulations now establish a procedure for individuals residing in the country to apply for V status.

A spouse or child of an LPR is eligible to apply for V status if he or she is the beneficiary of a family-based second preference (F2A) immigrant visa petition that was filed on or before Dec. 21, 2000, and that has been pending for at least three years. A child who is eligible to immigrate as a derivative beneficiary of a petitioned-for spouse or child who meets the above-described requirements also is eligible for V status.

In addition to meeting the above requirements, applicants must either not yet have an immigrant visa number available to them (in other words, not yet have a current priority date) or, if a visa number is available, they must have a pending application for adjustment of status or for an immigrant visa.

Individuals in the U.S. may apply for V status by filing Form I-539 (Application to Change Nonimmigrant Status) with the INS, together with the filing fee (currently $120) or a request for a fee waiver. Applicants between the ages of 14 and 79 must also submit the fingerprinting fee (currently $25), and they must comply with the instructions specific to V status applicants on Supplement A to Form I-539. Applicants must submit with the application Form I-693 (Medical Examination of Aliens Seeking Adjustment of Status), completed by a civil surgeon. Applicants are not required to submit the vaccination supplement to Form I-693. The applications should be submitted to:

U.S. Immigration and Naturalization Service
P.O. Box 7216
Chicago, IL 60680-7216

Individuals outside the U.S. may apply to the U.S. State Dept. for a V visa. Although the regulation does not address this point, according to the American Immigration Lawyers Association, the INS has clarified in a liaison conference that derivative children may apply on the same Form I-539 as their parent, and only one fee should be submitted for that form.

In order to qualify for V status, individuals must be admissible. Three grounds of inadmissibility do not apply to these applicants: INA sections 212(a)(6)(A) (for being present in the U.S. without having been admitted or paroled), 212(a)(7) (for not having a valid passport or visa), and 212(a)(9)(B) (the three- and ten-year bars for individuals seeking admission after having been unlawfully present in the U.S. for a period of time). Many other grounds of inadmissibility may be waived under the INA's existing nonimmigrant waivers. Applicants for V status are not subject to the requirement of having an enforceable affidavit of support (Form I-864) until the time that they apply for adjustment of status. However, the INS may request that they submit a nonbinding affidavit of support (Form I-134) to satisfy the public charge ground of inadmissibility.

Although the three- and ten-year bars for unlawful presence do not apply to V status applicants, these bars do apply to these individuals when they later seek to adjust to LPR status. This anomaly is probably an unintended result of the complicated process by which Congress enacted the LIFE Act. The original version of the LIFE Act contained special provisions for the adjustment of persons with V status that included an exemption from the unlawful presence bars. However, these provisions were deleted from the act by the LIFE Act Amendments, which instead created a temporary extension of the special adjustment provisions of INA section 245(i). Since any person with V status who is not eligible for regular adjustment would be eligible for adjustment under the extended section 245(i), it is likely that Congress deleted the act's special V status adjustment provision as unnecessary.

Thus, although persons with V status may travel and reenter the U.S. (if they obtain a V visa from the State Dept.), individuals who have been unlawfully present in the U.S. may suffer serious consequences if they do so. Individuals who obtain V status in the U.S. after having been unlawfully present in the country for more than six months, and who then depart from and return to the U.S., will be subject to the 3-year bar when they seek to adjust. Individuals in this situation who have more than one year of unlawful presence will be subject to the 10-year bar.

Individuals in immigration proceedings who are eligible for V status may request that the immigration judge (or the Board of Immigration Appeals, for cases on appeal) administratively close the case to allow them to apply for V status with the INS. The rule states that "if the alien appears eligible for V nonimmigrant status, the immigration judge or the Board, whichever has jurisdiction, shall administratively close the proceeding." In cases where the individual has a pending motion for reopening or reconsideration before the BIA, the rule states that the BIA should continue the motion indefinitely. The supplemental information to the rule notes that, for individuals with final orders of removal, the statute does not have a provision allowing untimely motions to reopen to apply for V status, but individuals can request that the INS join in such a motion to reopen as a matter of discretion.

The INS will grant V status to eligible individuals in two-year, renewable increments, unless the applicant is a child who will reach age twenty-one within two years, in which case V status will be granted only up until the day before the child's twenty-first birthday. In cases where an individual applying for renewal of V status has a current priority date but has not applied for adjustment of status, the INS will issue a one-time six-month extension of V status to allow the individual to apply for adjustment. There are three V subcategories: V-1 (for the spouse of an LPR), V-2 (for a child of an LPR who is the beneficiary of a visa petition), and V-3 (for a derivative child of a V-1 or V-2).

V status terminates thirty days after an individual's Form I-130 visa petition, application for adjustment of status, or application for an immigrant visa is denied or revoked (if the denial or revocation of the visa petition is appealed, it is considered still pending until the denial or revocation is administratively final). If a previously-approved I-130 petition is withdrawn, V status also terminates (the supplementary information to the rule notes that the spouse or child of an abusive LPR who has withdrawn an I-130 may be eligible to self-petition). Moreover, although the statute does not expressly address this issue, the regulations take the position that V status terminates if the individual becomes no longer eligible for an immigrant visa under the family 2A preference. Thus, a spouse who divorces, or a child who marries or reaches age 21, loses the status.

If the petitioning LPR relative becomes a U.S. citizen, the beneficiary(ies) no longer qualify under the 2A family preference, and the INS will not extend their V status when it expires. However, individuals in this situation may apply for adjustment of status, since they are immediate relatives of U.S. citizens.

The rule provides that individuals in V nonimmigrant status are authorized to work incident to their status but that they must obtain an employment authorization document from the INS. They may do so by submitting Form I-765 (Application for Employment Authorization) with the application fee (currently $100) or with a request for a fee waiver to the same INS Chicago post office address provided above.

In order to travel abroad and then reenter the U.S., individuals who were granted V status in the U.S. by the INS must apply for a V visa abroad. Such individuals may be granted a V nonimmigrant visa even though they have applied for adjustment of status or an immigrant visa, since the V visa category allows "dual intent"; whereas many nonimmigrant categories require the individual to have residence abroad and are not available to persons who intend to become LPRs, the V category does not. A V visa is not required for individuals who travel to contiguous territories or adjacent islands, have another valid visa, and are eligible for automatic revalidation. Again, it must be noted that individuals granted V status after having been unlawfully present in the U.S. for more than six months may be barred from adjusting to LPR status if they travel outside the U.S.

The interim rule took effect on Sept. 7, 2001. The INS invites public comments to the rule, which must be submitted on or before Nov. 6, 2001.

66 Fed. Reg. 46,697-705 (Sept. 7, 2001).