Channels Law Offices
3440 Wilshire Blvd.  Suite 808
Los Angeles, CA. 90010

Tel:  213-386-4763   10 to 4 Monday through Thursday  pst

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K and V visas

The new categories of nonimmigrant visas created by the LIFE Act may be issued to certain spouses of Lawful Permanent Residents, their dependent children (V1, V2, V3) and to spouses of U.S. citizens who were married overseas and the dependent children of the alien spouse (K3, K4). Those issued any of these visas may enter the United States as nonimmigrants to complete the process of immigration in the United States.


 INS RELEASES K-3 AND K-4 REGULATIONS 


This week the INS released an interim regulation to implement the new K-3 and K-4 visas created by the Legal Immigration and Family Equity Act last December.  This new category allows spouses of US citizen and their children to enter the US while they wait for their immigrant visa to be processed.  While there are no numerical restrictions on the number of spouses of US citizens that can immigrate each year, the process can sometimes take more than a year, often resulting in a prolonged separation.  To address this problem, the K-3 and K-4 visas were created. 

To be eligible for the new K visa, the applicant must be married to a US citizen, who has filed an immigrant visa petition on his or her behalf.  To obtain K-3 classification, the citizen spouse must file Form I-129F.  Separate applications do not need to be filed for children, because they are derivatives of their parents in the K-3 application.  Nonetheless, the best course of action would be to file an immigrant visa application for the child so that the child will be able to become a permanent resident at the earliest possible date. 

Once the I-129F is approved, the INS will notify the appropriate consulate abroad.  If the marriage occurred abroad, the appropriate consulate is the one with jurisdiction over the place of the marriage.  If the marriage occurred in the US, the appropriate consulate is the one with jurisdiction over the residence of the foreign national spouse.  While the K-3 and K-4 visas are nonimmigrant visas, because they lead directly to permanent residency, applicants will be required to meet existing requirements for K-1 and K-2 visas.  These requirements include obtaining medical exam results and an affidavit of support.  It is important for applicants to remember that the three and ten year bars imposed for certain unauthorized overstays in the US are applied to people seeking K-3 visas.  However, they can apply for a waiver of these bars. 

After obtaining the visa, the K-3 nonimmigrant will be admitted to the US for two years.  K-4 nonimmigrants will also be admitted for two years, or until their 21st birthday, whichever is earlier.  Only spouses of US citizens abroad will qualify for K-3 visas, as there is no provision for changing status to K-3 from within the US. 

People in K-3 and K-4 status will be eligible for employment authorization, but, as with K-1 and K-2 nonimmigrants, they must obtain this authorization by filing Form I-765.  To extend employment authorization, the applicant must show that they are continuing to pursue the immigrant visa or adjustment of status.  If, after two years, the immigrant visa or adjustment of status has not been approved, the K-3 or K-4 status may be extended for another two years.  In the event that that immigrant visa or adjustment of status is denied, the K-3 or K-4 status will be terminated 30 days after the denial.  During those 30 days, the foreign spouse must leave the US, and during that period, they are not authorized to work. 

The INS expects that most K-3 visa holders will apply for adjustment of status shortly after they enter the US.  However, as with the K-1 visa, the adjustment of status can be filed based only on the marriage to the US citizen who applied for the K-3 visa.  Applicants for adjustment of status may travel abroad without seeking advance parole by using the K-3 or K-4 visa.  The reason for this is that the INS presumes that a person married to a US citizen will not be abandoning their adjustment application simply because they travel abroad. 

Finally, the INS hopes to soon develop a new form to use for K-3 and K-4 applications.  Since the LIFE Act is already effective, however, it is using the I-129F for the time being.


What does the “new” K mean:

The purpose of new K visa is to reunite families that have been or could be subject to a long period of separation during the process of immigrating to the United States. Holders of the new K visas will be able to wait in the US for this process to be completed.

The new parts of the K category are intended for use by both a spouse of a United States citizen and by the spouse's children. The nonimmigrant visa for the spouse will be called a K3 visa and the visa for the spouse’s children will be called a K-4. 

The original K (fiance/e) nonimmigrant visa category for the fiance/e of a US citizen will continue, though it will now be called the K-1 for visa purposes. The visa for a child who will be immigrating with a K-1 alien will still be a K-2 nonimmigrant visa.

How do I qualify for a K visa?

To qualify for the new K nonimmigrant visa (known as the K3 NIV),the applicant for the visa must prove:

  • his/her marriage to a U.S. citizen is valid, and
     
  • he/she is the beneficiary of a petition (I-130) already filed with the US Immigration and Naturalization Service (INS) as the spouse of a U.S. citizen, but which petition has not yet been approved by INS, and
     
  • he/she is also the beneficiary of a special petition filed with and approved by INS in the United States, and
     
  • he/she wishes to enter the United States to await the approval of the I-130 petition by INS or the availability of an immigrant visa.

All four qualifications must be met before overseas processing of the request for the K visa can begin.

If an I-130 petition for the spouse is already at the overseas post, then an immigrant visa will be processed instead of the nonimmigrant K visa. If an immigrant visa based upon the I-130 petition for the spouse has already been denied, then neither the spouse nor the spouse’s children may qualify for a K3 or K4 visa.

K3 and K4 Visa Applications

 Applicants for the K3 and K4 visas must apply for those visas in the country where the marriage to the U.S. citizen took place.
Exceptions:

  • If the marriage took place in the US, then the visa application must take place abroad in the country where the visa applicant resides.
     
  • If the marriage took place in a country where there is no US consular section providing nonimmigrant visa services, then the application for a visa shall take place in the country designated by the Department of State for immigrant visa processing for residents of the country where the the wedding took place.

The new V visa
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 $100 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 $1000 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.).

Among those who do not directly benefit from this “new” V visa are:

  • Brothers and sisters of lawful permanent residents;

  • Parents of US citizens;

  • Grandchildren of lawful permanent residents;

  • Beneficiaries of employment-based immigrant visa petitions;

  • Individuals whose priority date is current and whose I-130 petition is already at an overseas post  and who either have already been interviewed by a consular officer or have an interview date already set with a consular officer overseas.

To qualify for a V1 visa, an applicant must be the spouse of a legal permanent resident.

To qualify for a V2 visa the applicant must be the child of a  V1 visa applicant or have been separately petitioned for by his or her lawful permanent resident parent (a child is defined in the law as an unmarried son or daughter under the age of 21).

Though the Department of State has identified all individuals presently in its files who might qualify for either visa, there will be others whose cases will emerge as INS discovers files that it has not forwarded to the Department and still other cases will, with the passage of time, become eligible. Petitioners, their beneficiaries, and their legal representatives should look at their situation to see if they meet or will meet sometime in the future the requirements for this new category of nonimmigrant visa.

Eligibility for Spouse (V1):

The spouse of a lawful permanent resident of the United States (a “green card” holder) may apply for a V1 nonimmigrant visa overseas, if the following conditions are met:

The lawful permanent resident filed an immigrant visa petition for his or her spouse on or before December 21, 2000, and
 

The spouse has waited three years since the filing of the petition and has not been scheduled for an immigrant visa interview. 

The spouse may be waiting either for INS approval of the petition or, if the petition was approved by INS, for availability of a visa number in order to complete immigrant visa processing.

Eligibility for Children (V2)

For the child of a V1 applicant to qualify for a V2 visa, it must be established that:

  • He/she is the child of a principal applicant who qualifies for V1 issuance, or

  • He/she is the child of an lawful permanent resident who filed an I-130 petition in his or her name, and
    the priority date and the three-year waiting period since the filing of the petition both meet the requirements of V eligibility.


Where to apply when not in the USA


V1 and V2 Visa Applications:

Applicants for V visas must be made at the post where their immigrant visa was to be processed. Generally this is the overseas post named in the I-130 petition upon which the claim to V status is made.


Application fee:   Each visa applicant must pay the Machine Readable Visa processing fee to apply for the visa (currently $45).   Each consular section abroad has a specific means of collecting this fee. For example, some posts require pre-payment of this application fee through a bank or other collection agent.  Consult with the post that will be processing the K or V visa about ways to pay. Details should be available on websites linked to below.

Medical Examination fee:   Each applicant must have a medical exam by a doctor chosen by the US consular officer to give such examinations .  Since these medical examination fees are different in each country, applicants for the V or K visa should consult with the post they will be processing with to find out the cost of these required medical examinations.  Only the Embassy or Consular appointed panel physician can complete these examinations.  Check for details through the websites linked below.

Other fees: There are no visa reciprocity fees for these visas, and, aside from fees required for the processing of waivers of ineligibility or any required fingerprinting or, in certain cases, for special delivery arrangements or special telephone-arranged interview appointments, no other fees are required.  Applicants will also require proof of the relationship claimed in the form of marriage and birth certificates or certain foreign police certificates which might require fees to be paid to other governmental agencies.
 

Click here for Overseas USA consulates and embassies

click on V visa form


To qualify for a V visa, the applicant must be the spouse or unmarried child under 21 of a permanent resident for whom an application for immigration was filed on or before December 21, 2000.  The application for immigration must have been pending for three years at the time of the application for the V visa.

The State Department also recently announced the creation of a new supplement form to the OF-156 Nonimmigrant Visa Application that is intended for V visa applicants. The new form, the DS-3052 Nonimmigrant V Visa Application will soon be available on the State Department web site at http://travel.state.gov.

The National Visa Center recently began sending a letter to nearly 300,000 potential V Visa applicants. Receiving the letter is not necessary to process a V Visa, but the letters contain a form which potential applicants can send to consular posts which will establish eligibility and will prompt the posts to schedule appointments.

The letter will read as follows:

        Dear Applicant:

        According to our records, you have a visa petition on file as the spouse or child of a Legal Permanent Resident.  Though the priority date for your petition has not been reached, the LIFE Immigration Family Equity Act created a new class of nonimmigrant visa that allows people in circumstances like yours to live and work legally in the United States while waiting for a visa number to become available.

        You may have heard of this new nonimmigrant visa, called the "V" visa. The purpose of this letter is to inform you how you may apply for this visa. We have placed general information on the "V" visa on our website at HTTP://TRAVEL.STATE.GOV/VVISA.HTML . If you are in the United States, you may apply to change your current status (regardless of what that status might be) to the "V'" visa status by contacting the U.S. Immigration and Naturalization Service. You should see their website:

         http://WWW.INS.GOV .  

If you are outside the United States, you must apply at selected U.S. embassies or consulates. 

        This letter and the enclosed worksheet are provided as a courtesy and not as an invitation to a specific interview.  If you have already received an interview date for your immigrant visa, you will be processed as an immigrant and not receive a V visa. To begin the process at a consular section overseas, you must complete the "V'" visa application worksheet (OF-156V). We have included one with this mailing, but it too can be completed and downloaded from our website:

 HTTP://TRAVEL.STATE.GOV/VVISA.HTML  Once complete, send the worksheet to the consular section at the embassy or consulate where your immigrant visa was to be processed. Records show that your visa file has been assigned to the post below.

         Name of post

        Address

When consular personnel receive your information, they will send you further instructions concerning required documentation such as family records, a medical exam, and financial evidence. Many overseas posts have a website that describes their particular procedures. To find out if the post handling your case has its own website, go to

  and click on the link that says, "U.S. Embassy and Consulate Websites Worldwide." When communicating with the consular office by telephone, letter, or e-mail, you must give your full name and case number as they appear below:

        Applicant's name

        Applicant's case number

        INS receipt number

- end of letter -

 

 

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