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No Age-Out For V-2s And V-3s

by Charles Wheeler, Esq.

The Director of Field Operations for DHS has provided guidance to the National Benefits Center regarding the adjudication of V-2 and V-3 extension applications from persons who have turned 21. At the end of last year, the Ninth Circuit issued a decision holding that children who entered the United States on V-2 visas should be allowed to remain in the country and extend their status beyond their 21st birth date. Under current regulations, children who entered on V-2 visas are ineligible for an extension and continued employment authorization beyond the date they turn 21. The appellate court found that it was not Congress' intent to separate these children from their petitioning parents upon their turning 21. While children who have already turned 21 lose their eligibility for a V visa, under the ruling they would still qualify to extend their V status and employment authorization while they remain in the United States pending eligibility to adjust. Akhtar v. Burzynski, No. 02-57037 (9th Cir. 2004). The case only affected applicants residing in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Advocates have been eager to learn how the USCIS would implement the decision. For example, was the agency going to apply it only to persons residing within the Ninth Circuit? Would it affect V-3 visa holders, as well as V-2s? Would it apply to persons who have already aged out, in addition to those about to turn 21? Would it apply to persons who did not enter with the V visa, but rather obtained V status from the USCIS? What about children who had entered on the V-2 or V-3 visa but returned to their home country at the time they aged out to avoid accruing unlawful presence? Many of those questions are answered in this recent interpretation.

According to the January 10, 2005 memo, the court's decision will be applied nationwide and will affect both V-2 and V-3 visa holders. The memo also finds that the appellate court "invalidated the age-out provisions of 8 C.F.R. 214.15(g)." That provision states that V-2 or V-3 visa holders shall be admitted to the United States for two years or until the day before alien's 21st birthday. It states that V-2 or V-3 status applicants shall be given the equivalent period of time when applying within the United States. V-2 and V-3 visa or status holders shall be granted extensions of their status for the equivalent period of time.

Under the new USCIS interpretation, V-2 and V-3 visa holders or status holders are entitled to an extension for two years, irrespective of when they turn 21. The memo states, "If the only reason for potentially denying an I-539 filed for V-2 or V-3 extension is that the alien has turned 21, the application shall be approved and the period of admission shall be in accordance with 8 C.F.R. 214.15(g)(1) (granted a period of admission not to exceed two years)."

Neither the court decision nor the USCIS memo provide a remedy for otherwise-eligible persons who failed to apply for a V visa or V status before turning 21. The USCIS memo reminds us that the law requires that they be under 21 to be eligible for an "initial" V-2 or V-3 status. The same would presumably be true for persons who left the United States and are now over 21; they would have to file for a new V visa and would be ineligible due to their age. The USCIS memo does help persons, however, who made a timely application for an extension of status before turning 21, but who were denied solely due to age-out. Those persons "may file a new application for extension."

The remaining question is whether V-2s or V-3s in the United States who failed to apply for an extension before turning 21 are now entitled to file an I-539 and regain their status. The memo does not provide a specific answer. However, the language in the appellate decision and the DHS interpretive memo, as well as the more recent order from the district court, would indicate that these persons are entitled to extend their V status. Since the agency has invalidated the age-out restrictions, V visa and status holders now over 21 should be entitled to renew their status. In fact, one of the plaintiffs in the case failed to file an I-539 before turning 21, but is now being allowed by the district court to file for an extension and continued employment authorization. The only wrinkle with this interpretation is that the USCIS differentiates between an "extension," which is filed as such (check box 1(a) in Part 2 of Form I-539) and that filed by persons who are out of status (check box 1(b), change of status, and write in "V" in the space provided). If you are filing for an extension, you do not need to submit fingerprints or the results of a medical exam. Otherwise, you do. The USCIS will be issuing new regulations to incorporate this court decision, and the regulations may clarify this issue further.

About The Author

Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC).

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.