R 010251Z SEP 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH
AMEMBASSY FREETOWN
POUCH PRISTINA
POUCH DUSHANBE
POUCH BELGRADE
POUCH NDJAMENA
UNCLAS STATE 151917

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: V VISA PROCESSING: NEXT STEPS

REF: A) STATE 057338 B) STATE 035234

Summary

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1. By the end of August, V eligible applicants with files
at NVC and F2A priority dates through September 30, 1998
will be listed in CLASS and will receive a V information
letter from NVC. V1, V2, V3 classification definitions
are herein clarified.

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More V Applicants Have Been Added to CLASS, But Check the
Priority Date in the CLASS Hit Before Issuing a V Visa.

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2. Names of prospective V applicants with F2A priority
dates between April 1, 1998 to September 30, 1998 have
been entered into CLASS, and NVC is completing the mailing
of V information letters. Full text of NVCs letter is
below. We decided to advance entering names of V
applicants into CLASS because many applicants who will be
eligible for a V are approaching posts to ask when they
might apply. Rather than tell them that there is no
record of eligibility, posts will be able to tell
inquirers when they might apply. NVC has already begun
identifying the next batch of V eligible applicants with
priority dates through December 31, 1998.

3. Under this new system, consular officers are reminded
that a hit in CLASS will no longer mean that an applicant
is immediately eligible to apply for a V. The CLASS hits
include the applicants priority date, and consular
officers must now check the priority date to ascertain
that the required three-year waiting period has been met
before a V visa can be issued.

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Text of NVCs V Information Letter
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4. Begin FYI: Dear Applicant:

According to our records, you have a visa petition on file
as the spouse or child of a Legal Permanent Resident. The
Legal Immigration Family Equity Act created the V visa to
allow spouses and minor children of Legal Permanent
Residents to enter the U.S. to live and work legally in
the U.S. while waiting for immigrant status. You may be
eligible to apply for the V visa.

Our Website at
HTTP://TRAVEL.STATE.GOV has information
about V visas. If you are outside the United States, you
must apply for the V visa at selected US Embassies or
Consulates. If you are in the U.S., you may apply to
change your current status (regardless of what that status
might be) to V status by contacting the U.S. Immigration
and Naturalization Service. INS has a Website at:
HTTP://INS.USDOJ.GOV.

You should also be aware of the 3- and 10- year bars,
which are triggered by a departure from the United States
after accruing unlawful presence on or after April 1,
1997. Generally, the 3-year ban applies to persons who
accrued more than 180 days of unlawful presence, and the
10-year bar applies to persons who accrued 1 year or more
of unlawful presence. V nonimmigrants can trigger the
3/10 bars in one of two ways. Persons applying for V
visas abroad may have already triggered the bar when they
left the United States. Persons applying to change their
status to V in the U.S. may later trigger the bar by
traveling, if they had already accrued enough unlawful
presence before their status was changed to V. In any
case, V's who have triggered the bar become inadmissible
when they apply for adjustment of status to permanent
residence, unless INS approves a waiver at the time of
application for adjustment.

If your immigrant visa case priority date is current for
processing, you are not eligible for a V visa, and you
will soon receive information on how to apply for your
immigrant visa. Otherwise, to apply for a V visa
overseas, use the attached contact information sheet to
telephone the consular section at the embassy or consulate
listed below, and they will give you further instructions.

Records show that your visa file has been assigned to the
post below:


Name of post
Address


When communicating with the consular section by telephone,
letter or e-mail, you must give your full name and case
number as they appear below:


Applicants name
Applicants case number
Applicants INS receipt number


You need to complete the V visa application worksheet (DS-
3052). Please write your telephone number and address on
the form. We have included one with this mailing, but it
too is available on our website.

Sincerely,

Bureau of Consular Affairs End FYI.

5. Enclosed with the letter is a list of posts and
telephone numbers as well as the DS 3052. The DS 3052 has
been revised and will include mailing addresses for both
the applicant and the petitioner. It will be distributed
to posts shortly.

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The NVC V Information Letter Is Not a Prerequisite for V
Processing

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6. The Department reminds posts that NVC's letter to V
applicants is intended to inform applicants that they may
be eligible to apply for a V. Posts should not ask
applicants to submit the letter as proof that they may be
eligible to apply for a V. There are no security features
in the letter, and the letter is of no use to adjudicating
consular officers at post. Consular officers should
instead use the CLASS system for this purpose as that is
the intent of adding V hits to CLASS.

----------------
9B Ineligibility
----------------

7. As posts are aware, the LIFE Act specifically exempted
V visa applicants from the ineligibility of 212(a)(9)(B).
However, there is no similar exemption from 9B for those V
applicants who later apply for permanent resident status.
The third paragraph in the NVC letter to V applicants was
written by INS and was included in the letter to advise
applicants of this future potential ineligibility.


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V-1, V-2, V-3 Clarified
-----------------------

8. In order to conform to the manner in which INS is
defining these V classifications, posts must issue V visas
as follows:

V-1 - issue to the principal applicant who is the spouse
of an LPR for whom a petition was filed with INS on or
before December 21, 2000 and who has waited three years
since the filing date of the petition.

V-2 - issue to a child of an LPR for whom an individual
petition was filed by the LPR parent, on or before
December 21, 2000, who has waited three years since the
filing of the petition.

V-3 - issue to a derivative child of a V-1 or V-2 visa
holder.

9. Formerly, most posts issued V-2 to all children of the
V-1 regardless of whether or not the child had an
individual petition in his/her name. By issuing V-2 to
all children, the POE was unable to determine if a V-2
holder was actually a derivative unable to enter the U.S.
before the principal applicant. The Department's
instruction in para 3 of reftel B is rescinded. Conoffs
must use the revised definitions of V1, V2, and V3 so that
consular and INS practices are the same in this regard.

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Dependents and CLASS Hits
-------------------------

10. As noted in previous ALDACS on V visas, we used the
F2A I-130 files at NVC to create the V hits in CLASS. Any
dependent included on the original petition was added as a
separate CLASS hit. As in IV processing, any derivative
who can demonstrate that he/she is the minor, unmarried
child of a V1 principal applicant is entitled to
derivative status. Names of dependents who were not
listed on the original petition, perhaps because they were
born after the filing of the petition, are not found in
CLASS because NVC had no means to know of the existence of
any dependents except for those listed on the petition,
yet they are eligible to apply for a V visa.

11. It is not necessary for posts to request that the
name of an eligible dependent be added to CLASS. NVC does
not enter the CLASS hits; this is done by technical staff
in Washington using the NVC database. If a derivative of
a V1 is deemed eligible for V3 issuance, post need only
send a Visas Hawk to NVC for the NCIC name check if the
individual is at least 16 years of age. Once the NCIC
name check is done, the V 3 can be issued without the CLASS
hit.

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Don't tell applicants they are not eligible for V because
their petitions are not yet approved by INS

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12. To be eligible for a V visa, the LIFE act stipulates
only that the petition must have been filed on or before
December 21, 2000, and that the applicant has waited three
years since the filing date. It does not mandate that INS
must approve the I-130 petition before a V may be issued.

13. Procedurally, because the Department wanted to
implement the LIFE Act ASAP and did not want to wait for
INS to come up with a method to verify petition filings,
we decided to begin with those cases for which we knew
that the petition had been filed. Those were the cases in
storage at NVC that had been approved by INS and forwarded
to NVC to await availability of a visa number. Since the
enactment of the LIFE Act, VO has been working with INS to
verify the filing of petitions with INS that are not yet
approved by INS. We do not yet have an answer, but we
hope to establish an electronic link with INS to identify
this type of case. The Department will have some news to
share with posts on this matter in the next few weeks.

14. Meanwhile, posts should advise individuals who are
potential beneficiaries of unapproved F2A petitions that
were filed over three years ago that they (or their
petitioner) may contact INS to request verification of the
filing of the petition. INS should subsequently fax such
verification to NVC at 603-334-0759. Do not rpt not advise
potential applicants or petitioners to contact NVC.

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Secondary Evidence of Petition Filing Presented by
Applicant

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15. As stated above, we continue to work with INS to
verify petition filings and add applicants eligible to
apply for a V to CLASS. Absent the original approved
petition at NVC or post, INS is the only entity that can
confirm that an I-130 petition was filed. While this is
not stipulated in the LIFE Act, it is the only sensible
procedure available. At this time, posts have no
authority to examine secondary evidence such as I-797
notices and determine eligibility to apply for a V based
solely on that secondary evidence. As noted above,
applicants not found in CLASS should be referred to INS
(not NVC) for verification of petition filing.

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Primary Evidence of Petition Filing at Post
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16. Posts that accept I-130 petition filings and store
the files at post are reminded that they already possess
primary evidence of the petition filing. If a petition
was approved by post and remains at post, a V visa may be
processed if the case falls within the parameters of the
LIFE Act. Because these files were not at NVC,
beneficiaries identified in such petitions will not
receive the V information letter, nor will the applicants
name appear in CLASS. In such cases, posts must send a
Visas Hawk to NVC for the NCIC name check before
proceeding. It is not necessary to request that these
applicants names be added to CLASS.

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Age-Out Cases
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17. V 2 and V 3 visas may be issued until the day before
the applicant turns 21, and the visa validity must be
limited to the day before they turn 21. There is no
provision in the LIFE act to benefit dependents who are
over 21 years of age or those who age out in the United
States when they become 21. Unlike those who enter the
United States in F2A IV status, those who enter as V2 or
V3 lose legal status and work authorization when they turn
21. If their status expires, unless they have made a
timely application to change to another nonimmigrant
status or found another way to maintain lawful immigration
status before their V status expired on their 21st
birthday, they will be like any other alien in the United
States not in valid status. An alien who remains in the
United States after the expiration of his/her period of
lawful admission without finding another lawful status
begins to accrue unlawful presence and is subject to
removal. Posts should so inform aging-out applicants who
qualify for V issuance.

18. Notwithstanding this difficulty for age outs, there is
no legal reason to deny V visa issuance to those who are
about to age out of the class. V visas may be issued up
to the day before the applicants 21st birthday. Posts may
not refuse applicants about to age out under the intending
immigrant provision of Section 214(b) as there is no
nonimmigrant intent required of V applicants.

19. As usual in IV processing, aging out V cases should
be expedited as much as possible by posts.

20. NVC does not have sufficient staff to check the files
manually for a case that does not appear in CLASS, but
such searches will be conducted for age outs. Posts may
accept an e-mail message from NVC regarding ageouts in
lieu of a CLASS name check; print out the message from NVC
and attach it to the OF-156. NVC will as usual perform
the NCIC name check for age outs.

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Retrogression
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21. As posts are aware, several Family-sponsored
preference category cut-off dates were retrogressed last
month in order to keep issuances within the FY 2001 annual
limits. With the start of the new fiscal year in October,
any cut-off date that was retrogressed will return to the
cut-off date established in June 2001.

22. This means that some F2A cases that were current in
July were suddenly no longer current. These F2A cases
immediately became eligible for V visas as long as they
had not been interviewed by a consular officer and were
not pending cases. Insofar as post scheduling allows,
these cases may be processed as V's; however, posts are
under no requirement to expedite such cases. Posts may
wish to explain to applicants that they may prefer waiting
until October when their IV case will again be current.

23. In this regard, posts may wish to frontline as many
IR cases as possible in September as there will be a crush
of family sponsored preference cases for October.
Employment-based categories were not retrogressed and
remain current with many numbers available for the
remainder of FY 01.

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Refusals and Revocations of V Cases
-----------------------------------

24. As noted in reftel, cases that are not in the class
of applicants outlined by the LIFE act may be refused
under Section 214(b). This may include cases that have
already aged out or those who did not wait the mandatory
three years since the petition filing.

25. If in processing a case, post develops information
that indicates the original I-130 petition may have been
approved in error, post may return the case to INS for
revocation. Of course, post will not have on hand the
petition and the file from NVC, and INS requires the
original petition before revocation will be considered.
In these cases, post may request the file from NVC by e-
mail to ShipshockSJ@state.gov.

26. If a post has reason to believe that a petitioner may
no longer be entitled to legal permanent resident status,
the consular officer shall return the petition to the
appropriate INS office after obtaining the file from NVC.
Only INS can determine whether an alien has lost LPR
status.

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Reminder: No Packets of Documents are Required for V's
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27. INS reports that some V applicants arrive at the POE
with an IV-style packet of documents to present to INS.
These packets include the medical exam, petitioner's tax
records, etc. Posts should not rpt not produce these
packets for V applicants. Conoffs should simply return
supporting documents to the V applicants and suggest that
they safeguard the documents to support later an
application for legal permanent resident status.

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V2 and V3 Validity Must be Limited
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28. INS also reports that many V2 and V3 applicants
applying for entry at the POEs were issued 10-year
validity V visas. Posts must rpt must limit the validity
of V2 and V3 visas to the day before the applicants
twenty-first birthday.

29. FYI: INS has opened a new service center in Missouri
(MSC) that will handle LIFE Act visa categories, both the
V's and the K3's. The Department will provide posts
information on INS procedures as it becomes available so
that posts general guidance to the public is complete and
accurate.

30. Conoffs may address any questions on the instructions
provided in the cable to CA/VO/F/P (C Osage).

POWELL