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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 |