More Details on New "V" Visa  and Expansion of "K" Fiance/e 
Posted Jan 14, 2001

During December of 2000 and January of 2001, we have posted articles on the new Legal Immigration and Family Equity (LIFE) Act. For example, in the December 22, 2000 MurthyBulletin we provided an update to our prior NewsFlash, adding details on who can, and who cannot, benefit from the Section 245(i) grandfathering extension. We now take the opportunity to describe further the new "V" visa category for certain relatives of Green Card holders and the expansion of the "K" (fiance/e) Visa category to include spouses of U.S. citizens.

V Visa Category

This category applies only to the spouses and minor children (known in the Green Card quota system as Family 2A beneficiaries), not to older sons and daughters of Green Card holders or other relatives. If a permanent resident files an immigrant petition (I-130) to apply for his spouse's and children's Green Cards, the spouse and children cannot obtain tourist visas to visit their relative in the U.S., because they intend to immigrate permanently. This V visa enables them to come to the U.S. not only for a visit, but to join their U.S. relative and remain legally in the U.S. while the Green Card cases are pending. V visa holders can obtain employment authorization as well, so they can work legally while in the U.S.

The basic eligibility requirements are as follows:

a) The I-130 must have been filed on or before December 21, 2000.

b) The case must be ongoing for at least three years. Either the petition must have been pending for three years or more, or if there is a petition approval, then the beneficiary must have been waiting three years on the Green Card waiting list. (Though this point remains somewhat unclear, we at The Law Office of Sheela Murthy, P.C. presume that the petition processing time and the additional waiting time can be combined to add up to the three-year period.)

Section 212(a)(9)(B), the three- and ten-year bar provision in the immigration law, will not apply, so a person could be issued a V visa at a consulate even if s/he overstayed a significant amount of time in the U.S. Also, persons already in the U.S. will be able to change to V status, even if they entered without inspection or overstayed their authorized period of admission. When the time comes to adjust status (i.e. the priority date becomes current), they can adjust status within the U.S., using 245(i) as needed.

Expansion of K Visa Category

This provision will help spouses of U.S. citizens who are waiting outside the U.S. for their family-based Green Card cases to be processed. Accompanying minor children are also included. Generally, fiance/e applications are processed more quickly than applications for spouses. The ability for the spouse to now qualify for the K visa will help to eliminate this disparity. As with V visa holders, K visa holders can obtain work authorization in the U.S.

The procedure is as follows:

The immigrant petition (I-130) must be filed first. Then the K visa petition is filed with INS in the U.S. as well. The spouse, who must be outside the U.S., is then issued the K visa at the consulate, and can come to the U.S. while waiting for the approval of the immigrant petition. K status cannot be granted to a person already in the U.S.

If the marriage took place abroad, then the K visa must be issued at the consulate in the country where the marriage occurred.

The bill provides that this new K status is available both to individuals with currently pending Green Card petitions and future applicants.

Unlike the V visa, the K visa can be used even if the I-130 is first being filed after the enactment of the LIFE Act. However, the I-130 does need to be filed before filing the K petition. Therefore, for those who have not yet filed the I-130, the new K visa may not make much of a difference in terms of processing time. However, for those whose I-130 is already pending, filing the K petition can help.

As mentioned in a prior article, attorneys at The Law Office of Sheela Murthy, P.C. will also be participating in a teleconference about the LIFE Act with other AILA attorneys. We will provide updates as they become available in subsequent articles in the MurthyBulletin.