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< Back to current issue of Immigration Daily

The ABCs Of Immigration - INS Issues V Visa Regulations
by Greg Siskind and Amy Ballentine

Recently 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) i

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.

[9/20/01 Correction: the previous paragraphs contain information which was proposed but not included in the LIFE Act actually enacted. V visa holders are eligible to apply for adjustment of status when an immigrant visa becomes available. They do not need to establish physical presence in the US at any time between July 1, 2000, and October 1, 2000.]

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.).

The INS regulation is available at our documents collection section at: http://www.visalaw.com/docs/vvisas.pdf


About The Author

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 defender’s 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



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