ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

ILW.COM Premium Membership

The ABCs of Immigration - Department of State Publishes Regulations Covering New V Visa and K Visa Categories
by Greg Siskind and Amy Ballentine

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:

  1. 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

  2. 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:

  1. that he or she is the child of a principal alien entitled to classification under V-1 or V-2; and

  2. 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 V 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:

  1. that his or her marriage to a U.S. citizen is valid;

  2. he or she is the beneficiary of a spousal immediate relative immigrant visa petition (I-130);

  3. 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;

  4. 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


About The Authors

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


Share this page with a friend Share this page


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: