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
RELEASES K-3 AND K-4 REGULATIONS
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
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
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,
- 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.
the marriage took place in the US, then the visa application must
take place abroad in the country where the visa applicant resides.
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.
new V visa
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,
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
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:
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
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
Among those who do not directly benefit from this “new” V visa
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
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
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
He/she is the child of a principal applicant who qualifies for V1
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
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.
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.
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.
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
here for Overseas
USA consulates and embassies
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.
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
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.
letter will read as follows:
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.
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
. 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:
If you are outside the United
States, you must apply at selected U.S. embassies or consulates.
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:
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
consular personnel receive your information, they will send you further
instructions concerning required documentation such as family
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
end of letter -