The regulations have now been drafted which provide for spouses and children of lawful permanent residents to be reunited with their petitioning family members under the “V” visa which was created by the Legal Immigration Family Equity Act (LIFE) of 2000. Once in the United States, the alien can receive work authorization and reside here until their visa number becomes available.
To be eligible for the “V” non-immigrant visa, the alien must be the beneficiary of an immigrant visa petition which was filed on or before December 21, 2000. The petition must have been filed by the green card holding relative (F2A). The alien is eligible for the “V” visa if the immigrant visa petition has been pending for 3 years or more. The alien is also eligible for “V” status if the visa petition has been approved and 3 years have passed since the date of filing if either the immigrant visa number is not yet available or the immigrant visa number is available but the alien’s application for an immigrant visa abroad or application for adjustment of status in the United States is still pending.
The spouse of the LPR will be classified as a “V-1”. Children will be classified as “V-2”. Derivative status children will be classified as “V-3”.
Aliens in “V-1”, “V-2” or “V-3” non-immigrant status are authorized to remain in the U.S. until their authorized period of admission expires. If their family petition or the application for immigrant visa or adjustment of status is denied, the alien’s “V” status is terminated. The status is also terminated if the alien ceases to be eligible for F2A preference category. If the marriage on which the petition is based ends, the status is terminated. When the child turns 21 or marries, “V” status is terminated. The attorneys at Reeves & Associates do not believe that this regulation section reflects the intent of Congress or the provisions of the LIFE Act. This issue will have to be resolved in United States District Court.
If the petitioner becomes a United States citizen, the alien moves from second preference to immediate relative category and the “V” status will not be renewed.
Aliens may apply for the “V” visa through the INS or through the American Consulate. The application must be accompanied by an affidavit of support, a medical examination and a police clearance. Visa will be issued for a maximum of 2 years however they may be extended for as long as the alien remains eligible for the visa. An alien in valid V status may apply for work authorization.
Aliens present in the U.S. without admission or parole, aliens not in possession of a valid, unexpired passport or immigrant or non-immigrant visa and aliens unlawfully in the U.S. are not inadmissible as a result of those facts and they may apply for the “V” visa. Unlawful presence will not stop an alien from getting the V visa. However, if the alien has been unlawfully in the United States for 6 months or more and leaves the United States (either to get the “V” visa or to travel while on the “V” visa), he will be subject to the unlawful presence bar when he applies for a green card only if he or she exits the United States. Therefore, aliens who have been in the U.S. illegally should not leave the U.S. either to get the “V” visa or to travel on it. If the alien is in deportation proceedings, he can still apply for the “V” visa. However, he must ask the Immigration Judge to administratively close the proceedings. If the alien has already received a deportation order, he must apply to reopen his deportation case. However, there is no provision under the “V” visa laws to allow the case to be reopened. This issue will have to be resolved with the INS. The benefits of the V visa are very important and the potential dangers in applying incorrectly are very great.
