| V-1/V-2/V-3 Spouses and Children of Lawful
Permanent Residents Awaiting the Availability of an Immigrant
Visa
The lengthy backlog in immigrant visas
has compromised a central focus of U.S. immigration policy,
family unity. It is difficult for family members of a U.S.
permanent resident to obtain nonimmigrant visas, as there
is a strong presumption that they are intending immigrants.
Consequently, many families have remained separated for many
years awaiting the availability of immigrant visas.
To partially remedy this problem, in 2000 Congress established
a new nonimmigrant V visa category for the admission of spouses
and unmarried minor children of permanent residents. To qualify
for a V visa, a noncitizen must meet several requirements.
First, the individual must be the spouse or unmarried child
under 21 of a lawful permanent resident. (The law excludes
adult unmarried sons and daughters of permanent residents,
unmarried and married sons and daughters of U.S. citizens,
and brothers and sisters of U.S. citizens.) Second, a petition
must have been filed on behalf of the beneficiary in the family-sponsored
2A immigrant visa category before December 21, 2000, the date
of enactment. Third, either of the following must be the case:
- the petition for immigrant visa classification has been
pending for three years or more; or
- if the immigrant visa petition has been approved, three
or more years must have elapsed since the filing date of
that petition and either (a) an immigrant visa is not immediately
available to the noncitizen because of backlogs in the 2A
category, or (b) the noncitizen's application for an immigrant
visa or for adjustment of status remains pending.
A noncitizen who meets these requirements may either apply for
a V visa at the U.S. consulate abroad designated in the I-130
petition or apply to change to V status if he or she is already
in the United States. In determining eligibility, the unlawful
presence ground of inadmissibility, the bar to noncitizens present
without admission or parole, and the bar to noncitizens who
do not satisfy documentary requirements at the time of admission
do not apply.
The V category is divided into three subcategories:
- V-1 for an eligible spouse of the petitioning lawful permanent
resident;
- V-2 for an eligible child (unmarried and under 21) of
the petitioner; and
- V-3 for the derivative child (unmarried and under 21)
of either the V-1 or V-2.
The INS will authorize V classification for up to two years
(either as a period of admission or change of status). Extensions
are possible indefinitely for as long as the V applicant is
eligible. For age-out cases, the INS indicates that V-2 or V-3
status will be granted a period of admission that ends one day
prior to the individual's twenty-first birthday. If the V-2
or V-3 beneficiary gets married, his or her V status is terminated.
V status provides for employment authorization, although
the noncitizen must obtain an employment authorization document.
A person in valid V status is eligible for an employment authorization
document for as long as he or she is in V status.
One of the biggest advantages of the V classification is
that people applying for admission to the United States in
V nonimmigrant status are exempt from the unlawful presence
ground of inadmissibility in INA § 212(a)(9)(B) . In other
words, a person who is admissible as a V nonimmigrant and
who has accrued more than 180 days of unlawful presence in
the United States is not subject to the 3 and 10-year bars
to admission. However, the V nonimmigrant still needs to be
extremely careful about traveling outside the United States,
even as a V, since he or she could later be subject to the
3 and 10-year bars when applying for a different visa category.
For example, if an individual is unlawfully present in the
United States for two years and then changes to V status,
she could leave the United States and re-enter using a V visa,
but then later find that she is subject to the 10-year bar
when she tries to adjust status to permanent residence because
she left the United States, even though she was in lawful
V status when she re-entered.
A person in V status must remain eligible for the family
2A immigrant preference category (spouses and minor children
of U.S. permanent residents) or lose V nonimmigrant status.
Examples of situations in which an individual would lose V
status are as follows:
- Marriage creating eligibility terminates;
- Child turns 21 (ages out);
- I-130 petition denied or revoked;
- Immigrant Visa or Adjustment application denied;
- Petitioner becomes a U.S. citizen (this does not result
in automatic termination, but makes the noncitizen ineligible
to renew V status).
Noncitizens in V status may apply to adjust their status to
become permanent residents if they meet certain requirements.
First, they must have been physically present in the United
States sometime between July 1 and 0ctober 1, 2000. Second,
they must be eligible for an immigrant visa and be admissible.
The law waives the grounds of inadmissibility concerning unlawful
presence, being in the United States without admission, and
failing to have certain immigration documents. Third, they normally
must have continuously maintained a lawful status since obtaining
V status. People in V status who apply for adjustment of status
normally must pay a surcharge of $ 1,000.
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