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

Use ILW.COM's Case Tracking System

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

[Federal Register: April 16, 2001 (Volume 66, Number 73)]
[Rules and Regulations]               
[Page 19390-19394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap01-6]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 3644]

 
Visas: Nonimmigrant Classes; Legal Immigration Family Equity Act 
Nonimmigrants, V and K Classification

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule implements five new nonimmigrant visa categories 
(V1, V2 and V3 and K3, K4) established pursuant to the Legal 
Immigration Family Equity (LIFE) Act that was enacted on December 21, 
2000. The new categories permit United States consular officers to 
issue nonimmigrant visas to the spouse, child and, in some instances, 
the child of the child of a lawful permanent resident alien (LPR) and 
to the spouse of a United States citizen and the child(ren) of the 
spouse. Issuance of nonimmigrant visas will permit these aliens 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.

DATES: This interim rule is effective April 1, 2001. Written comments 
must be received no later than June 1, 2001.

ADDRESSES: Written comments may be submitted, in duplicate, to H. 
Edward Odom, Chief, Legislation and Regulations Division, Visa Office, 
Room L603-C, SA-1, Department of State, Washington, DC 20520-0106.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, Visa Office, Room L603-C, SA-1, Department of 
State, Washington, D.C. 20520-0106, (202) 663-1204; or e-mail: 
odomhe@state.gov.

SUPPLEMENTARY INFORMATION:

Background

What is the Purpose of the New Visa Categories and Who Benefits From 
Them?

    On December 21, 2000 the President signed into law the Legal 
Immigration Family Equity (LIFE) Act, Title XI of H.R. 4942, Pub. L. 
106-553. Sections 1102 and 1103 of the LIFE Act add to the existing 
nonimmigrant categories of section 101(a)(15) of the Immigration and 
Nationality Act (INA), 8 U.S.C. 1101(a)(15), two new categories, one 
subdivided into three subcategories (V1, V2, V3) and the other into two 
subcategories, (K3, K4). The underlying purpose of this legislation 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. 
Therefore, once admitted as a V or K nonimmigrant, the alien generally 
will be permitted to remain in the United States with his or her family 
until the visa petition is approved or denied. Then, if the petition 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. In both the new V and K categories the spouses and children 
affected are those for whom an immigrant visa or adjustment of status 
are not available despite the petition having been filed. The lack of 
availability of a visa or opportunity to adjust status in many cases 
may be due to lengthy processing delays. In the cases of many spouses 
and children of lawful permanent residents (LPRs) it may be due to the 
fact that no visa number has yet become available to the alien because 
of the annual numerical limitation placed on immigrant visas in the 
second preference category.
    The new category ``V'' is intended for use by certain spouses and 
unmarried children of LPRs who have filed second preference petitions 
in their behalf pursuant to INA 203(a)(2)(A), and by the unmarried 
children of those principal beneficiaries. A spouse who qualifies for V 
status will be classified as V1. A petitioned-for child will be 
classified as V2. A derivative child of either will be classified as 
V3. Under the LIFE Act, no benefits accrue in the new categories until 
three or more years after the date on which a second preference 
petition was filed on behalf of the principal beneficiary.
    The LIFE Act also adds new subcategory K(ii) to the existing K 
(fianc(e)) nonimmigrant category. The original K category has been 
renumbered K(i) and modified to remove derivative children and place 
them in a new K(iii) subcategory along with the children of an alien 
classified under the new K(ii) subcategory. Nevertheless, a fiance(e) 
of a U.S. citizen will continue to be designated K1 for visa purposes. 
A derivative child of a K1 alien will still be designated K2. The new 
K3 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. The spouse's child(ren) will be designated K4. Unlike the new 
V3 category, neither existing legislation nor the LIFE Act provides for 
visa issuance to the child of a child of the spouse or the petitioner.

V Visas

What are the Requirements to Obtain Classification as a V1, V2, or V3 
Nonimmigrant?

    In order to obtain classification as a nonimmigrant under V1 or V2 
the alien applicant must first establish that a second preference (F2A) 
petition (I-130) as the spouse or child of an LPR had been filed in his 
or her name on or before the date the LIFE Act was enacted, i.e., 
December 21, 2000. Further, the applicant must establish that either: 
(1) The petition in the applicant's name has not been acted upon after 
three years or more, or (2) if the petition has been approved, three 
years or more have passed since the petition was filed and either no 
visa number has become available because of the worldwide or per 
country numerical limitation, or even though a number is available the 
alien's application for

[[Page 19391]]

adjustment of status or visa application remains pending.
    In order to obtain nonimmigrant classification under V3, the 
applicant must establish that he or she is the child of a principal 
alien entitled to classification under V1 or V2. All applicants must 
demonstrate that they are otherwise eligible for visa issuance under 
all other applicable immigration laws, including those pertaining to 
the exclusion of aliens other than INA 212(a)(6)(A), 212(a)(7) and 
212(a)(9)(B) from which they are specifically exempted by the LIFE Act.

When is an Immigrant Visa Application Considered to Remain Pending for 
the Purpose of Obtaining a V Visa?

    As stated, if a visa number is available to the alien, in order for 
the alien to obtain a V visa the alien's immigrant visa application 
must ``remain(s) pending''. However, the LIFE Act does not give any 
indication as to what is meant by the phrase ``application for a visa 
remains pending''. It could refer to the time period between the date 
on which the alien's visa number becomes available and the date the 
alien is given an appointment at an embassy or consulate in order to 
apply for an immigrant visa. Or, it could refer to the time period 
between the alien's actual application for a visa and the date on which 
a decision is made on the application. Considerable delay at either 
stage can cause hardship. In view of the specific wording of the LIFE 
Act, however, Congress appears to have contemplated that the alien must 
first actually apply for an immigrant visa before he or she may be 
considered eligible for a V visa. The application must then remain 
pending. The Department will thus interpret the phrase ``application 
for a visa remains pending'' to mean that the alien has applied for an 
immigrant visa pursuant to current regulations, i.e., has personally 
appeared before a consular officer and verified by oath or affirmation 
the statements contained on the Form OF-230 and in all supporting 
documents, has previously submitted all forms and documents required in 
advance of the appearance and paid the visa application processing fee, 
but no decision has been made to issue a visa or refuse the 
application. In most cases a visa will either be issued or refused at 
the time of the alien's personal appearance at the visa interview. The 
specific requirements for making an application are found at 22 CFR 
40.1(l)(2). Refusal criteria are found at 22 CFR 42.81(a).

Must an Applicant for a V Visa Apply at a Particular Consular Post?

    Yes. Unless they obtain permission under existing Department 
procedures to permit them to apply at some other post, applicants for V 
visas must apply at the consular post designated as the processing post 
in the underlying immigrant visa petition. Because in many ways the V 
visa is a substitute for an immigrant visa, much of the information 
relevant to an immigrant visa is also relevant to this nonimmigrant 
visa. For example, such information may include local documents 
establishing family relationships and in some cases testimony of 
neighbors or other relatives that help to establish such relationships 
and other bona fides of the applicants.

Does the Department Intend to Authorize Issuance of V Visas to Persons 
Who as Children Were Qualified for V Visas, but Who Either ``Age-out'' 
by Reaching the Age of Twenty-one Years or Marry Prior to Receiving a V 
Visa?

    No. The V visa classification clearly limits the class of 
qualifying aliens to beneficiaries of the F2A immigrant visa 
preference. The INA 101(b) definition of ``child'' includes only those 
persons who are under the age of twenty-one years and unmarried. Thus, 
while in the LIFE Act Congress clearly seeks to unify families waiting 
for F2A visas, the law only authorizes the issuance of visas to 
children who meet the INA definition of child. This rule reflects that 
limitation.

What Will be the Validity Period of a V Visa?

    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. In addition, the separate V visa supplemental application 
form which every V visa applicant or his or her parent will be required 
to sign will contain a notice apprising them that if a V2 or V3 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. It will further inform the applicant that such 
marriage may cause termination of their legal status in the United 
States.

Will Any Attempt be Made to Notify Potential V Visa Applicants of Their 
Possible Eligibility for the V Visa?

    Yes. In view of the fact that the V visa provision is new and 
somewhat unusual in terms of prevailing law and practice, the 
Department has decided that it will send a special notice about the V 
visa to all persons with F2A priority dates three years or older for 
whom it has a record in its files at the National Visa Center (NVC). 
INS routinely notifies NVC of the approval of immigrant visa petitions 
for which the beneficiary has requested visa processing at a consular 
post abroad. The Department maintains a database of all such petitions 
in which it records information regarding the beneficiary's immigration 
classification and priority date. Using that information NVC will 
attempt to contact potential V visa applicants in order to provide them 
with important information about the V visa and how it may be obtained. 
In fact, as of March 15, 2001 the Department had already begun making 
such notifications.

Will the Processing of V Visas Differ From Routine NIV Processing, 
e.g., Processing for a Tourist or a Student Visa?

    Yes. In view of the fact that the aliens in the V categories are 
essentially intending immigrants who will remain in the United States 
indefinitely, the Department of State has determined that it is prudent 
to impose on them requirements generally not routinely applied to other 
nonimmigrants, other than fiance(e)s. Such requirements relate to the 
presentation of evidence to establish that the intending immigrant 
meets health and criminal background standards sufficient to protect 
the American public.
    Under INA 212(a), in order to receive a visa all aliens must 
establish their eligibility in these areas to the satisfaction of the 
consular officer. Generally, however, among nonimmigrants, only the 
fiance(e) visa applicants, who likewise are intending immigrants, have 
been held to a high evidentiary standard in these areas. Thus, for the 
purpose of meeting certain INA 212(a) requirements the applicants for 
the new V visa categories will be held to the same standard applied to 
fiance(e) visa applicants.

What Specific Documentation Will be Required in Order for V Visa 
Applicants to Establish Their Eligibility in the Areas of Health and 
Criminal Background?

    With regard to health, all applicants will be required to submit to 
the medical examination applicable to

[[Page 19392]]

immigrant visa applicants, with the exception that applicants will not 
be required to meet the vaccination requirements of INA 
212(a)(1)(A)(ii). With regard to criminal background, all applicants 
will be required to present at the time of visa application a criminal 
record statement (police certificate) pursuant to the requirements of 
22 CFR 42.65(c) and to have their name submitted to the Federal Bureau 
of Investigation for an NCIC records check.

May an Alien Who Already has Been Granted V Status in the United States 
by the INS Apply for a V Visa? If so, Will the Procedure to Obtain the 
Visa be the Same as if the Alien had not Previously Been Granted V 
Status?

    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. Therefore, the alien will be eligible to apply 
for a V visa when traveling abroad. Although the procedures for 
obtaining the visa will remain the same as it is for aliens who have 
not previously been granted V status, 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 and therefore the Department will accept the alien's V status 
granted by INS as evidence that the alien has met both requirements.

K Visas

What are the Requirements to Obtain Classification as a K3 or K4 
Nonimmigrant?

    In order to obtain classification under K3 the applicant must 
demonstrate that his or her marriage to a U.S. citizen is valid, he or 
she is the beneficiary of an immigrant visa petition (I-130) filed to 
accord status to the applicant as the spouse of a citizen pursuant to 
INA 201(b)(2)(A)(i), he or she is the beneficiary of an approved 
nonimmigrant visa petition (currently form I-129F) in such form as the 
INS determines is appropriate for the purpose of the issuance of a K3 
visa, 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. The nonimmigrant visa petition must have been filed in the United 
States by the U.S. citizen spouse of the applicant. In order to obtain 
classification under K4 the alien must establish that he or she is the 
child of an alien entitled to K3 classification.

When is an Immigrant Visa Considered not to be Available for the 
Purpose of Obtaining a K3 Visa?

    For the purposes of LIFE Act only, and in the absence of a 
definition of the term ``availability of an immigrant visa'' in that 
Act, the Department has given the phrase a narrow interpretation in 
order to maximize the number of aliens who may benefit from the Act's 
provisions. Therefore, an immigrant visa will be considered 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. If the petition has been received at post, any K3 nonimmigrant 
visa application filed by the alien spouse will be denied and he or she 
will have to apply for an immigrant visa.

What Happens if the I-130 has Been Approved but not yet Received at the 
Processing Post?

    Despite the fact that an approved immigrant visa petition may not 
have been received at post, it may have been forwarded to NVC where 
many approved immediate relative visa petitions are sent for pre-
processing. The Department recognizes that if the petition has actually 
been approved many alien spouses may prefer to process their immigrant 
visas rather than the K3 visa. Therefore, 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. Subject to the special circumstance noted in the next section, if 
the applicant wishes, the petition will be forwarded to the processing 
consular post so the applicant may file an immigrant visa application.

What Happens if an Intending K3 Applicant Opts to have the Immigrant 
Visa Petition Forwarded Abroad From NVC in Order to Apply for an 
Immigrant Visa, but the K3 Processing Post is not Authorized to Issue 
Immigrant Visas?

    In that case immigrant visa petition will have to be forwarded to 
and the applicant will have to file the immigrant visa application at 
the consular post designated by the Deputy Assistant Secretary of State 
for Visa Services to process immigrant visa applications for nationals 
of the country in which the K3 processing post is located.

Must an Applicant for a K3 or K4 Visa Apply at a Particular Consular 
Post?

    Yes. If the marriage of the alien to the U.S. citizen occurred 
abroad, the LIFE Act requires that the visa be issued in the country in 
which the marriage took place. In those countries in which there is no 
consular post, the Department has determined that the alien must apply 
at the consular post designated by the Deputy Assistant Secretary of 
State for Visa Services to accept immigrant visa applications from 
nationals of that country. For spouses married in the United States, 
since the K3 and K4 visas are a subcategory of the K (fiance(e)) visa, 
the rules regarding the place of application applicable to other K 
visas will apply, i.e., in general, applications must be filed in the 
country of residence of the alien spouse.

Will the Department Use the Same Standards for Issuing Full Validity K3 
and K4 Visas and for the Notice to Children of Marriageable Age as 
Established for the V Visa?

    Yes. The Department is authorizing the issuance of ten-year 
multiple entry visas to K3 and K4 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. A special visa application supplement for K3 
and K4 applicants will also contain a notice informing them of the 
potential consequences of marriage by a child recipient of a K4 visa 
prior to admission to the United States or adjustment of status.

Will the Documentation Required To Obtain K3 and K4 Visas Also Differ 
From Routine NIV Processing, e.g., Processing for a Tourist or a 
Student?

    Yes. For the reasons stated above with regard to V visa applicants, 
K3 and K4 visa applicants will be processed via the modified immigrant 
visa procedure applicable to fiance(e)s. In general, this procedure 
requires a medical examination and law enforcement background check of 
the alien.

May an Alien Who Already Has Had Filed in his or her Name an 
Application for Adjustment of Status, but Who Has Not Previously 
Applied for a K Visa Obtain a K Visa?

    Yes. However, they will be subject to all of the procedures 
applicable to other K3 applicants, including medical examination and a 
police record check.

Interim Rule

How Is the Department of State Amending Its Regulations?

    The Department is adding new Sec. 41.86 to part 41 of Title 22. 
This new section will permit consular officers to issue a new category 
of nonimmigrant visa, the V visa, to certain spouses and children

[[Page 19393]]

of lawful permanent resident aliens. It is also amending Sec. 41.81 of 
part 41 of Title 22 by designating the language of the existing section 
as subsection (a) and adding two new subsections, (b) and (c), that 
will permit consular officers to issue nonimmigrant visas in new 
categories K3 and K4 for the spouse of a U.S. citizen and the spouse's 
child(ren), respectively.

Administrative Procedure Act

    The Department's implementation of this regulation as an interim 
rule, with a provision for public comments, is based upon the ``good 
cause'' exceptions found at 5 U.S.C. 553(b) and (d)(3). The Department 
decided that, since the LIFE Act as it pertains to the new nonimmigrant 
visa categories became effective upon enactment, and since it provides 
a substantial benefit to many citizens and lawful permanent residents 
by permitting their speedy reunification with their spouses and 
children, there is not enough time nor sufficient reason to delay its 
implementation by issuing a proposed rule with request for comments. 
Publication of this regulation as an interim rule will expedite 
implementation of Title XI of Public Law 106-553 that is already in 
effect and allow eligible aliens to apply for and participate in this 
program as soon as possible in light of its humanitarian intent.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by 
approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. The act 
involves entirely individual citizens and permanent residents and their 
family members and will have no significant economic impact on small 
entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and the Office of Management and 
Budget has waived its review process under section 6(a)(3)(A).

Executive Order 13132

    This regulation will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Paperwork Reduction Act

    This rule does not impose any new reporting or record keeping 
requirements. The information collection requirement (Form OF-156) 
contained by reference in this rule was previously approved for use by 
the Office of Management and Budget (OMB) under the Paperwork Reduction 
Act.

List of Subjects in 22 CFR Part 41

    Aliens, Applications, Nonimmigrants, Passports and visas.


    Accordingly, amend 22 CFR part 41 as follows:

PART 41--[AMENDED]

    1. The authority citation for Part 41 continues to read as follows:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681 et 
seq.

    2. Add a new Sec. 41.86 to read as follows:


Sec. 41.86  Certain spouses and children of lawful permanent resident 
aliens.

    (a) Definition of ``remains pending''. For the purposes of this 
section, a visa application ``remains pending'' if the applicant has 
applied for an immigrant visa in accordance with the definition in part 
40, Sec. 40.1(l)(2) and the visa has neither been issued, nor refused 
for any reason under applicable law and regulation.
    (b) Entitlement to classification. A consular officer may classify 
an alien as a nonimmigrant under INA 101(a)(15)(V) if:
    (1) The consular officer has received notification from the 
Department of State or the Department of Justice that a petition to 
accord status to the alien as a spouse or child pursuant to INA 
203(a)(2)(A) was filed on or before December 21, 2000; or
    (2) The alien is eligible to derive benefits pursuant to INA 203(d) 
as a child of an alien described in paragraph (b)(1) of this section 
and such alien has qualified for V classification; and
    (3) It has been three years or more since the filing date of the 
petition described in paragraph (b)(1) of this section and applicable 
to paragraph (b)(2) of this section and either:
    (i) The petition has not been approved; or
    (ii) If it has been approved, either no immigrant visa number is 
immediately available or the alien's application for adjustment of 
status or the alien's application for a visa remains pending.
    (c) Eligibility as an immigrant required. The consular officer, 
insofar as practicable, must determine the eligibility of an alien 
described in paragraph (b) of this section to receive a nonimmigrant 
visa under INA 101(a)(15)(V), other than an alien who previously has 
been granted V status in the United States by INS, as if the alien were 
an applicant for an immigrant visa, except that the alien is exempt 
from the vaccination requirement of INA 212(a)(1), the labor 
certification requirement of INA 212(a)(5) and the unlawful presence 
ineligibility of INA 212(a)(9)(B).
    (d) Place of application. Notwithstanding the requirements of 
Sec. 41.101, in determining the place of application for an alien 
seeking a visa pursuant to INA 101(a)(15)(V) the requirements of part 
42, Secs. 42.61(a) and (b)(1) of this chapter will apply.

    3. Revise Sec. 41.81 to read as follows:


Sec. 41.81  Fiance(e) or spouse of a U.S. citizen and derivative 
children.

    (a) Fiance(e). An alien is classifiable as a nonimmigrant fiance(e) 
under INA 101(a)(15)(K)(i) if:
    (1) The consular officer is satisfied that the alien is qualified 
under that provision and the consular officer has received a petition 
filed by a U.S. citizen to confer nonimmigrant status as a fiance(e) on 
the alien, which has been approved by the INS under INA 214(d),

[[Page 19394]]

or a notification of such approval from that Service;
    (2) The consular officer has received from the alien the alien's 
sworn statement of ability and intent to conclude a valid marriage with 
the petitioner within 90 days of arrival in the United States; and
    (3) The alien has met all other qualifications in order to receive 
a nonimmigrant visa, including the requirements of paragraph (d) of 
this section.
    (b) Spouse. An alien is classifiable as a nonimmigrant spouse under 
INA 101(a)(15)(K)(ii) when all of the following requirements are met:
    (1) The consular officer is satisfied that the alien is qualified 
under that provision and the consular officer has received a petition 
approved by the INS pursuant to INA 214(p)(1), that was filed by the 
U.S. citizen spouse of the alien in the United States.
    (2) If the alien's marriage to the U.S. citizen was contracted 
outside of the United States, the alien is applying in the country in 
which the marriage took place, or if there is no consular post in that 
country, then at a consular post designated by the Deputy Assistant 
Secretary of State for Visa Services to accept immigrant visa 
applications for nationals of that country.
    (3) If the marriage was contracted in the United States, the alien 
is applying in a country as provided in part 42, Sec. 42.61 of this 
chapter.
    (4) The alien otherwise has met all applicable requirements in 
order to receive a nonimmigrant visa, including the requirements of 
paragraph (d) of this section.
    (c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii) 
if:
    (1) The consular officer is satisfied that the alien is the child 
of an alien classified under INA 101(a)(15)(K)(i) or (ii) and is 
accompanying or following to join the principal alien; and
    (2) The alien otherwise has met all other applicable requirements 
in order to receive a nonimmigrant visa, including the requirements of 
paragraph (d) of this section.
    (d) Eligibility as an immigrant required. The consular officer, 
insofar as is practicable, must determine the eligibility of an alien 
to receive a nonimmigrant visa under paragraphs (a), (b) or (c) of this 
section as if the alien were an applicant for an immigrant visa, except 
that the alien must be exempt from the vaccination requirement of INA 
212(a)(1) and the labor certification requirement of INA 212(a)(5).

Dated: March 28, 2001.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 01-9367 Filed 4-13-01; 8:45 am]
BILLING CODE 4710-06-U

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: