Register: September 7, 2001 (Volume 66, Number 174)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Rules and Regulations
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having general applicability and legal effect, most of which are keyed
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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]
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,
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.
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
(1) An immigrant visa number is not yet available to the
(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
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,
the V-3 status of any derivative child will simultaneously be
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
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
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.
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
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
Supplement A to Form I-539 includes instructions specific to
applicants for V nonimmigrant status in addition to those found on Form
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''
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.
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
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