On April 16, 2001, the Department of State issued its interim rule regarding the procedures for processing visas under the new V visa and K visa categories created by the Legal Immigration Family Equity (LIFE) Act. This rule implements five new nonimmigrant visa categories (V-1, V-2 and V-3 and K-3, K-4) that permit United States consular officers to issue nonimmigrant visas to the spouse, any unmarried children under age 21 and, in some instances, the child (unmarried and under 21) of the child of a lawful permanent resident alien (LPR), and to the spouse of a United States citizen and the unmarried children under age 21 of the spouse. Aliens issued these nonimmigrant visas will be permitted to apply for admission into the United States as nonimmigrants where they may await the completion of the immigration process with their U.S. citizen or LPR family member. If an individual’s petition for a V visa or K visa is approved, the alien may continue to remain until the application for adjustment of status is approved or denied, or may depart to seek the issuance of an immigrant visa at the appropriate consular office abroad.
New V Visa Rules
The new V visa category is intended for use by certain spouses and unmarried children under age 21 of LPRs who have filed second preference petitions in their behalf, and by the unmarried children of those principal beneficiaries. A spouse who qualifies for V status will be classified as V-1. A petitioned-for child will be classified as V-2. A derivative child of either will be classified as V-3.
In order to obtain classification as a nonimmigrant under V-1 or V-2 the alien applicant must establish:
- that a second preference petition (I-130) as the spouse or child of an LPR had been filed in his or her name on or before December 21, 2000; and
- that (a) either the petition in the applicant’s name has remained pending for a period of three years or more; or (b) if the petition has been approved, that three years or more have passed since the petition was filed and either no visa number has become available, or the alien’s application for adjustment of status or visa application remains pending even though a visa number is available.
In order to obtain nonimmigrant classification under V-3, the applicant must establish:
- that he or she is the child of a principal alien entitled to classification under V-1 or V-2; and
- that they are otherwise eligible for visa issuance under all other applicable immigration laws.
When applying for a V visa, the Department states that applicants will need to provide more evidence than generally required of nonimmigrants because V visa applicants are essentially intending immigrants who will remain in the United States indefinitely. Therefore, like immigrant visa applicants, V visa applicants will be required to present evidence to establish that they meet health and criminal background standards by submitting a medical examination, a criminal record statement and having their name submitted to the FBI for a records check.
The Department is instructing consular officers to issue visas to qualified applicants for the usual maximum full validity period of ten years, subject to issuance for a shorter period due to the possibility of age-out, or based upon security concerns or ineligibility waiver limitations. The Department will not issue visas to children who have reached the age of 21 or have gotten married since the filing of the underlying immigrant petition. Also, if a V-2 or V-3 child enters into a marriage prior to obtaining adjustment of status the marriage will render a child ineligible for adjustment of status as a preference immigrant and may cause termination of their legal status in the United States.
Since an alien who previously has been granted V status by INS in the United States will need a V visa in order to return to the United States in that status, the alien will be eligible to apply for a V visa when traveling abroad. The procedures for obtaining the visa will remain the same as it is for aliens who have not previously been granted V status, however, in most cases the alien will not have to undergo a new medical check or police records check since INS requires both as a part of the procedure for an alien to change status to V visa status.
In the comments included with the interim rule, the Department also noted that as of March 15, 2001, it has begun sending a special notice about the V visa to all persons with second preference (2A) priority dates three years or older for whom it has a record in its files at the National Visa Center (NVC). The notice contains important information about the V visa and how it may be obtained.
New K Visa Rules
The new K-3 visa is intended for use by a spouse of a United States citizen for whom a spousal immediate relative petition has been filed in the United States. Any qualifying children of the spouse (under age 21 and unmarried) will be designated K-4. Unlike the new V3 category, the child of a child of the spouse or the petitioner is not eligible for a K-4 visa.
In order to obtain classification under K-3, the applicant must demonstrate:
- that his or her marriage to a U.S. citizen is valid;
- he or she is the beneficiary of a spousal immediate relative immigrant visa petition (I-130);
- he or she is the beneficiary of an approved nonimmigrant visa petition (filed by the US citizen spouse using INS form I-129F) in such form as the INS determines is appropriate for the purpose of the issuance of a K3 visa;
- and that he or she wishes to enter the United States to await the approval of the I-130 petition or the availability of an immigrant visa.
In order to obtain classification under K-4 the alien must establish that he or she is the child of an alien entitled to K-3 classification.
Also, the K visa applicant must apply for the visa at the US Consulate in the country in which the marriage to the US citizen took place. If the marriage took place in the US, the applicant must apply at the US Consulate in the alien spouse’s country of residence.
Under the new rule, a qualified individual is only able to apply for a K nonimmigrant visa as long as the individual’s immigrant visa is not yet available. For purposes of K visa issuance, the Department of State considers a visa to be available only when the actual approved I-130 petition has been received at the consular post at which the visa application must be filed. Therefore, if the petition has been received at post, any K nonimmigrant visa application filed by the alien spouse will be denied and he or she will have to apply for an immigrant visa. If the approved immigrant petition has not been received by the consular post, the individual can proceed with their K visa application.
In the case where a petition has been approved, but it remains at the National Visa Center for pre-processing, individuals will be given the option to obtain a K visa or have the petition forwarded to the consular post so the individual can process their immigrant visa rather than a K visa. When the alien applies for the nonimmigrant K3 visa he or she will be asked by the consular officer whether they wish the consular officer to determine from the NVC whether the approved immigrant visa petition has been received from INS, and if the applicant wishes, the petition will be forwarded to the consular post for immigrant visa processing.
The Department is authorizing the issuance of ten-year multiple entry visas to K-3 and K-4 visa recipients, except in those instances in which the limitations of age (aging-out), security concerns or ineligibility waiver limitations indicate a shorter period of validity is necessary. Like the V visa, K-3 and K-4 nonimmigrant visa applicants will be required to provide a medical examination and law enforcement background check