FAQ on New V Visa Regulations from INS 
Posted Sep 14, 2001

On Friday, September 7, 2001, INS issued the long-awaited regulations for the new V visa category. MurthyBulletin readers have shown much interest in this type of visa. The new category of the V visa came into being when the Legal Immigration and Family Equity (LIFE) Act was signed into law on December 21, 2000. The V visa is for spouses and children of green card holders who have been waiting at least three years to immigrate permanently to the U.S. and whose I-130 petitions were filed on or before December 21, 2000, the date of the enactment of LIFE.

The U.S. Department of State (DOS) has been issuing V visas at consulates abroad since April 2001, but until these regulations were issued INS has been unable to process applications from persons present in the U.S. wishing to file a change to V status. The regulations are to take effect immediately but INS is accepting public comments until November 6, 2001.

In our continuing effort to provide the immigrant community with timely and useful information, we summarize the regulations below in Frequently Asked Questions (FAQ) format.

Q1. Who is eligible for V status?

You must either (a) have had an immigrant visa petition (I-130) filed for you on or before December 21, 2000 as the spouse or child of a U.S. permanent resident OR (b) be the child of a person described in item (a). Please note that in order for a child to be eligible for V status s/he must be under 21 and unmarried.

In addition to the above requirements, the I-130 must have been filed at least three years ago, and you (a) are still waiting for it to be approved; (b) have an approval but be waiting for the priority date to become current; OR (c) have a current priority date but still be waiting for the immigrant visa or adjustment of status to be processed.

Q2. What are V-1, V-2, and V-3?

The spouse of the U.S. lawful permanent resident (LPR) petitioner would be issued the V1 visa, and the child of the LPR would obtain the V-2. V-3 is the dependent category, for the child of either a V-1 or V-2.

Therefore, if the spouse and the LPR have a child together, the child would need to have had the I-130 filed for him or her, and then be eligible for the V-2 visa, provided all the above requirements are met. If the LPR is not the parent of the spouse's child, then the child would obtain the V-3. The other V-3 situation, which is less common, is if the V-2 child has a child, then that child will be issued the V-3.

Q3. How do I apply for the V status in the U.S.?

It is necessary to file Form I-539 in the U.S., which is the standard form used for change of status. There is also a supplement that is unique to the V category, with special instructions that need to be followed. The supplement should be available from the INS website.

Though INS has opened a new Service Center in Missouri to handle these cases, the application is actually sent to a P.O. box in Chicago. INS has contracted with a bank there to process fees and do the initial data entry. The packages will then be forwarded to the Missouri Service Center.

The filing fee is $120 and there is also an additional $25 for a fingerprinting fee. (Please see below with regard to fingerprinting procedures.) Along with the form and any items mentioned in the supplement, it is necessary to show proof that the LPR spouse or parent filed the immigrant petition (I-130) with INS.

Q4. Do I have to be in the U.S. legally to be eligible to change to V?

No, and therefore changing to V status is different from changing to any other status. The standard requirement is that a person cannot obtain a change of status from INS unless s/he has entered legally and is maintaining an un-expired status. The LIFE Act provides an exception, allowing persons to change to V status even if they entered illegally or overstayed an authorized period of admission.

Please note, however, that for persons who entered without inspection or who overstayed, there may be a difficulty in traveling since they could become subject to the three- or ten-year bar at the time of completing the green card process. See question Q12 below with regard to travel.

Q5. Do I need a medical exam?

Yes. The same type of medical exam report that is used in the I-485 (adjustment of status) process is needed for the V application. However, the supplemental form regarding vaccinations is not required for the V.

Q6. Do I get fingerprinted?

Yes. At some point after filing the application you will receive a notice to be fingerprinted. The notice will give you a particular time to be fingerprinted and will tell you the location where you need to go.

Q7. How long am I allowed to be in the U.S. on a V?

INS will grant V status for two years. As described in Q8, it is also possible, under appropriate circumstances, to file for an extension. A V nonimmigrant may stay in the U.S. until the expiration of the V status that INS has granted, but that status is terminated if (a) the immigrant petition (I-130) is denied; (b) the application for an immigrant (permanent) visa is denied at a consulate; or (c) the application for adjustment of status (I-485) is denied. If V-1 or V-2 status is terminated on any of the above grounds, then the V-3 status of the dependent child automatically terminates also.

The V nonimmigrant also must remain eligible for the green card in the family 2A category. So if the spouse who is in the U.S. on a V gets divorced, the V status is no longer valid. Another example, discussed in Q9, is if a V child turns 21 or gets married. (Please note, however, that there are special provisions for a spouse or child who is the victim of domestic violence to petition on his or her own for the green card if need be.)

Q8. How do I extend my V status?

You can apply for an extension using the same form and documentation as described in Q3 for the initial change of status application to INS. Extensions are granted for a two-year period. You can apply for an extension even if you have filed the adjustment of status (I-485) application, which is the final stage of the green card process. However, most persons with the I-485 pending would likely choose not to extend the V. Once the I-485 has been filed the applicant is legally allowed to remain in the U.S. while awaiting a decision on the I-485 application, and can also apply for the employment card based on the I-485.

Q9. What happens when a child in V-2 or V-3 status turns 21 or gets married?

The V-2 or V-3 status is valid only up to the 21^st birthday. If when initially admitted from abroad, or granted the change of status in the U.S., the child is at least 19 years old, the status will be given only until the 21^st birthday, rather than for the standard two-year period.

The V status is for persons eligible to immigrate in the Family 2A category, for spouses and children (under 21) of LPRs. If the person turns 21, then the immigrant petition converts to the 2B category. While the immigrant petition (I-130) remains valid, the V status terminates and the person will either have to leave the U.S. or change to some other status for which s/he may qualify, depending upon the circumstances.

If a V-2 or V-3 child marries, then both the immigrant petition and the V status terminate since LPRs cannot petition for their married children. Only U.S. citizens can petition for married children.

Q10. What happens when the LPR who filed the I-130 petition becomes a U.S. citizen?

The V visa status is for a person eligible to immigrate in the Family 2A category, as spouse or child of LPR. So the V status would terminate when the petitioning relative naturalizes.

Please note, however, that for a V-1 spouse or V-2 child, the I-130 petition would convert to the "immediate relative" category and the person would be able to file for adjustment of status (I-485) to complete the green card process. For a V-3 child, the situation is more complex. The V-3 child would not already have an I-130 filed for him or her; rather s/he is a dependent of the V-1 or V-2. While Family 2A I-130 petitions can include dependents, immediate relative petitions (for the spouse or child of a U.S. citizen) cannot. Therefore, the I-130 petitioner who filed for the V-1 spouse needs to file an I-130 for the child, and the child can at the same time file the I-485. In order to be eligible for the green card as the petitioner's stepchild, the marriage between the petitioner and the V-1 spouse has to have taken place before the V-3 child turned 18 years of age.

Please note that the situation is extremely problematic for the second type of V-3 child -- the child of a V-2 child. There is no grandchild category for the U.S. citizen petitioner to file an I-130 for this type of V-3 child. Once the formerly V-2 child becomes a permanent resident, s/he can presumably file the I-130 for her/his child but that new I-130 will not enable the former V-3 to apply for the V again because a qualifying I-130 for V purposes must have been filed by December 21, 2000. So the former V-3 would either have to leave the U.S. or change to some other status for which he or she may qualify, depending upon the circumstances.

Q11. Can I work while in V status?

A person in V status is eligible to apply for the employment authorization document (EAD), and would be able to work once the EAD is actually obtained. The application for EAD is submitted using the same form that is usually used for this purpose, but for V applicants the form is sent to the special Chicago address where the application for change to V status is sent.

It is possible to file for the EAD simultaneously with the change to V status. A person who was granted the V visa abroad and then admitted to the U.S. on the V status can file for the EAD after arrival in the U.S.

Q12. Can I travel out of the U.S. and back on the V visa?

The V visa is issued as a multiple-entry visa at the consulate. If you are granted a change to V status within the U.S., then the next time you travel abroad you would need to obtain the V visa at the consulate, to be readmitted in V status.

Please note that there are risks involved in traveling, especially for a person who was in the U.S. illegally for an extended period of time. As described above, persons who have entered without inspection or overstayed an authorized period of admission can change to V status in the U.S. Also, such persons can be granted the V visa when they travel abroad, and travel in and out freely using the V visa. However, at the time of completing the green card process, through either adjustment of status (I-485) in the U.S. or through an immigrant visa interview abroad, there could be a problem with the 3- or 10-year bars.

Under the 1996 law known as the Illegal Immigration and Immigrant Responsibility Act (IIRAIRA), a person who was "unlawfully present" for 180 days in the U.S. and then travels abroad voluntarily can be barred from reentering the U.S. for 3 years. For a person unlawfully present for a year, the bar on reentry is 10 years. V visa holders are not subject to these bars when entering on their V visas, but they can be subject to the bars at a later stage, when completing the green card process.

The definition of unlawfully present is actually quite complex, but basically it means either (a) the person entered the U.S. without inspection / without papers or (b) the person was lawfully admitted but overstayed the expiration date on the I-94 card. There are also some exceptions for certain special circumstances. If you think one of the situations listed in (a) or (b) applies to you, we suggest you consult with an attorney before making plans to travel abroad. A person who is otherwise subject to the 3- or 10-year bar may be able to apply for a waiver of the bar, but such waivers may not be easy to obtain. So it is best just to avoid travel for a person who would be subject to the bars.

Q13. How do I get a V visa for my spouse or child who is abroad?

The V visa is applied for at the consulate abroad. DOS has issued detailed guidance and instructions on V visa issuance. That guidance has been the subject of other articles in the MurthyBulletin. You can find those articles in the Family-Based Immigration section. Of course, the DOS website  is also a good information source.

Q14. Can this law help people who are in immigration court proceedings or who have already been ordered to leave the country?

A person who is in proceedings and appears to qualify for V status can request the Immigration Judge to administratively close the proceedings, to give the opportunity to apply for V status. The person would then apply for the V status. If the INS finds that the person does not qualify, then the proceedings can be recommenced.

If the person already has a final order of removal, deportation or exclusion, the person must follow the usual rules with regard to whether the proceedings can be reopened. The regulations include deadlines for motions to reopen, and there is no special provision for a person applying for V status. One exception to the motion deadline is if the INS agrees to join the motion.