[Federal Register: September 7, 2001 (Volume 66, Number 174)]
[Rules and Regulations] 
[Page 46697-46705]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07se01-1] 

========================================================================
Rules and Regulations
Federal Register

________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================

[[Page 46697]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214, 245, 248, 274a, and 299

[INS No. 2117-01; AG Order No. 2502-2001]
RIN 1115-AG08

V Nonimmigrant Classification; Spouses and Children of Lawful Permanent Residents

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.


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

SUMMARY: This rule implements a new V nonimmigrant classification for 
certain spouses and children of lawful permanent resident aliens that 
was added by section 1102 of the Legal Immigration Family Equity Act 
(LIFE) of 2000, Public Law 106-553, effective on December 21, 2000. To 
be eligible for this new nonimmigrant category, the alien must be the 
beneficiary of an immigrant visa petition that has been pending with 
the Immigration and Naturalization Service (Service) for at least 3 
years, or that has been approved and 3 years have passed since the 
filing date. Eligible aliens may enter and work in the United States, 
and continue to reside here while they wait for the immigrant visa 
petition to be approved; their priority date to be reached for filing 
for adjustment of status or an application for an immigrant visa; and 
the adjudication of that application. This interim rule sets forth the 
eligibility standards for V classification and the procedures for 
changing to V nonimmigrant status while in the United States, and for 
obtaining employment authorization based on V nonimmigrant status.

DATES: Effective date. This rule is effective on September 7, 2001.
Comment date. Comments must be submitted on or before November 6, 
2001.

ADDRESSES: Please submit written comments to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street NW, Room 4034, Washington, DC 20536, via fax to 
(202) 305-0143, or via email to
INSREGS@USDOJ.GOV. To ensure proper 
handling, please reference the INS No. 2117-01 on your correspondence. 
Comments are available for public inspection at this location by 
calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Michael Valverde, Residence and Status 
Branch, Immigration and Naturalization Service, 425 I Street, NW, Room 
3214, Washington, DC 20536, Telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

Background

Section 1102 of the LIFE Act amends the Immigration and Nationality 
Act, as amended (8 U.S.C. 1101, et seq.) (Act), in three ways:
(1) Section 1102 amends section 101(a)(15) of the Act (8 U.S.C. 
1101(a)(15)) to add a new nonimmigrant classification, paragraph (V), 
for certain spouses and children of lawful permanent residents (LPRs), 
who have waited at least 3 years for the availability of an immigrant 
visa number in the family-based second (F2A) preference category in 
accordance with the State Department's monthly Visa Bulletin. Eligible 
spouses and children (under 21 years old and unmarried) of LPRs outside 
the United States may apply for a V nonimmigrant visa abroad and for 
admission to the United States as a V nonimmigrant. If already present 
in the United States, eligible aliens may obtain V nonimmigrant status 
while remaining in the United States.
(2) Section 1102 of LIFE also adds section 214(o) to the Act (8 
U.S.C. 1184(o)) in order to provide the terms and conditions of V 
nonimmigrant status and employment authorization.
(3) Section 1102 of LIFE makes conforming amendments to sections 
214(b) and 214(h) of the Act (8 U.S.C. 1184(b) and 1184(h)) to include 
reference to the V nonimmigrant classification.

Who Is Eligible for V Nonimmigrant Status?

To be eligible for V nonimmigrant status, the alien must be the 
beneficiary of an immigrant visa petition, Form I-130, Petition for 
Alien Relative, that was filed by the LPR on or before December 21, 
2000, under the F2A preference category of section 203(a)(2)(A) of the 
Act (8 U.S.C. 1153(a)(2)(A)). The child of a petitioned-for spouse or 
child beneficiary is also eligible for such status if he or she is 
accompanying or following to join such an alien.
The alien is eligible for V status if the Form I-130 immigrant visa 
petition has been pending for 3 years or more. In addition, the alien 
is eligible for V status after the visa petition has been approved and 
3 years have passed since the date of filing, in either of the 
following circumstances:
(1) An immigrant visa number is not yet available to the 
beneficiary; or
(2) If an immigrant visa number is available to the beneficiary, 
his or her application for an immigrant visa abroad or application for 
adjustment of status under section 245 of the Act (8 U.S.C. 1255) is 
still pending.
An eligible spouse of an LPR will be classified as V-1. An eligible 
child of an LPR will be classified as V-2. The child of either, if 
eligible to accompany or follow to join the principal alien under 
section 203(d) of the Act (8 U.S.C. 1153(d)), will be classified as V-

3.An alien eligible for V nonimmigrant status may apply for a V 
nonimmigrant visa at a consular office abroad or, if the alien is 
already in the United States, he or she may apply to the Service for 
classification as a V nonimmigrant. An alien in V nonimmigrant status 
in the United States may obtain employment authorization.

What Are the Terms and Conditions of V Nonimmigrant Status?

Aliens in V-1, V-2, or V-3 nonimmigrant status are authorized to 
remain in the United States until their authorized period of admission 
expires, or until one of the following is denied: (1) the Form I-130, 
Petition for Alien Relative, filed by the LPR on behalf of his or her 
spouse or child; (2) the alien's application for an immigrant visa; or 
(3) the alien's application for adjustment of status. If the V-1 or V-2 
alien's status is terminated for any of these reasons,

[[Page 46698]]

the V-3 status of any derivative child will simultaneously be 
terminated.
Aliens in the United States in V nonimmigrant status must abide by 
the terms and conditions of that status as set forth in section 214 of 
the Act (8 U.S.C. 1184). Since V nonimmigrants are admitted to the 
United States to await the availability of an immigrant visa number in 
the F2A preference category (spouses and minor children of lawful 
permanent residents), in accordance with the State Department's monthly 
Visa Bulletin, they must continue to be eligible for that preference 
category.
An alien who is no longer eligible for the F2A preference category 
described in section 203(a)(2)(A) of the Act (8 U.S.C. 1153(a)(2)(A)) 
is no longer eligible for V nonimmigrant status. For example, an alien 
would no longer be eligible if the qualifying marriage that forms the 
basis for the Form I-130 is terminated or the child petitioned for on 
the Form I-130 reaches the age of 21. If the Form I-130 is withdrawn by 
the petitioner, or if it is revoked under section 205 of the Act (8 
U.S.C. 1155), then the alien is no longer considered to be in valid V 
classification beginning 30 days after the withdrawal or event that 
causes the revocation (8 U.S.C. 1184(p)(3)). (However, the Service 
notes that a spouse or child of an abusive lawful permanent resident 
may be eligible in certain circumstances to file a self-petition for 
classification as a preference immigrant, as provided in 8 CFR 204.4, 
even if the LPR has withdrawn the Form I-130 that was filed on his or 
her behalf.)

How Can an Eligible Alien Who Is Outside the United States Obtain a 
V Nonimmigrant Visa?


Eligible aliens who live abroad may obtain a V nonimmigrant visa 
from the Department of State by applying at a United States consular 
office. Eligible applicants must demonstrate that they meet the 
requirements of section 101(a)(15)(V) of the Act (8 U.S.C. 
1101(a)(15)(V)).
The Department of State published an interim regulation on April 
16, 2001, at 66 FR 19390 (22 CFR 41.86), that sets forth procedures for 
applying for a V nonimmigrant visa at a consular office abroad.

Waiver of Ground of Inadmissibility

Section 1102(b) of LIFE adds section 214(o) to the Act, (8 U.S.C. 
1184(o)) which, among other things, provides that aliens applying for 
admission to the United States in V nonimmigrant status are exempt from 
the ground of inadmissibility found at section 212(a)(9)(B) of the Act 
(8 U.S.C. 1182(a)(9)(B)), relating to unlawful presence. This means 
that, for the purpose of admission as a V nonimmigrant, aliens who have 
accrued more than 180 days of unlawful presence in the United States 
are not subject to the 3- and 10-year bars to admission.
It is important to note that, as discussed in more depth below, 
section 214(o) of the Act waives this ground of inadmissibility only 
for V nonimmigrant admissions (or changing to a V nonimmigrant status), 
and not for purposes of obtaining immigrant status. When a V 
nonimmigrant applies for adjustment or for an immigrant visa to obtain 
permanent resident status, he or she is still subject to the ground of 
inadmissibility under section 212(a)(9)(B) of the Act relating to 
unlawful presence and the bars to admissibility.

How Can an Eligible Alien Who Is in the United States Obtain V 
Nonimmigrant Status?


Beginning September 7, 2001, eligible aliens in the United States 
who wish to obtain V nonimmigrant status must file the Form I-539, 
Application to Change Nonimmigrant Status, with the Service and pay the 
application fee, currently $120, required by 8 CFR 103.7(b)(1), or 
request a waiver of the application fee in accordance with 8 CFR 
103.7(c). All aliens 14 to 79 years of age who are filing Form I-539 to 
obtain V nonimmigrant status must submit a service fee for 
fingerprinting, currently $25, with their application. In addition to 
the instructions listed on the Form I-539, all aliens applying for V 
nonimmigrant status must follow the supplemental instructions found on 
Supplement A to Form I-539. Applications should be submitted to: U.S. 
Immigration and Naturalization Service, P.O. Box 7216, Chicago, IL 
60680-7216.

Supplement A to Form I-539 includes instructions specific to 
applicants for V nonimmigrant status in addition to those found on Form 
I-539.
Although the statute uses the term ``adjust'', the Service views 
the conversion to V nonimmigrant status as a ``change'' from one 
(usually) nonimmigrant status to another nonimmigrant status, rather 
than an ``adjustment'' of status from nonimmigrant status to lawful 
permanent resident (LPR) status. This is especially so because V 
nonimmigrants are required to be pursuing LPR status through the 
adjustment of status or the immigrant visa process. For these reasons, 
the Service is planning to use the Form I-539 and the term ``change'' 
of status.

Medical Examination

An applicant applying for V nonimmigrant status must submit, along 
with his or her application, the results of a medical examination by a 
civil surgeon. The alien must submit this information on Form I-693, 
Medical Examination of Aliens Seeking Adjustment of Status, completed 
by a civil surgeon. Each Service district office maintains a list of 
physicians in the area who have been designated as civil surgeons by 
the Service. An applicant for V nonimmigrant status is not required to 
submit the vaccination supplement to Form I-693.

Fingerprinting Appointment

After receiving the application and proper fees, the applicant will 
be scheduled for fingerprinting at an Application Support Center (ASC). 
An applicant who does not appear for fingerprinting without previously 
notifying the Service may have his or her application denied under 8 
CFR 103.2(b)(13).

Evidence

An alien applying for V nonimmigrant status should submit proof of 
filing of the immigrant petition that qualifies the alien for V status. 
Proof of filing may be in the form of Form I-797, Notice of Action, 
which serves as a receipt of the petition or as a notice of approval, 
or a receipt for the filed petition or notice of approval issued by a 
local district office. If the alien does not have such proof, the 
Service will review other forms of evidence, such as correspondence to 
or from the Service regarding a pending petition.
If the alien does not have any of the above items, but believes he 
or she is a beneficiary of a qualifying petition and as such is 
eligible for V nonimmigrant status, he or she should provide 
information indicating where and when the petition was filed, the name