The Current State of V Visa Processing for Applicants Both in the U.S. and Abroad
September 12, 2001

The recently created V visa allows certain spouses and under 21 year old children of U.S. lawful permanent residents to obtain immigration benefits while awaiting immigrant visa availability in the family based second preference visa category. First and foremost, it allows qualifying applicants abroad to visit their nearest U.S. consular post and obtain a visa to travel and work in the U.S. For those already in the U.S., whether legally, out of status or with no status, V visa status, along with the issuance of an Employment Authorization Document, can be facilitated with the applicant not having to depart the U.S.

Again, as previously discussed here, only those spouses and under 21 year old children of lawful permanent residents with I-130 petitions pending on their behalves more than 3 years are eligible for V visa benefits. Not surprisingly, however, many questions regarding the application of this seemingly basic law have arisen at U.S. consular posts worldwide, and of course, at INS offices across the U.S.

Firstly, the biggest questions facing the prospective applicant in the U.S. have been: 1) when, 2) where and 3) how can an application be submitted. That is because INS has yet to implement final instructions regarding V visa application processing in the U.S. According to a recent INS news release, however, final instructions for V visa processing in the U.S. can be expected any day now.

For those overseas, it seems consular processing of V visas has been going smoothly for the most part. This observation is derived from my experience of not hearing many client complaints or concerns regarding the way a particular U.S. consular post abroad has handled their relative’s case. There are still, however, a few issues of concern that have arisen.

One has been whether the overseas spouse or child can apply for and be issued a V visa if the INS Service Center at issue has yet to approve the I-130 petition, although the petition has been pending with that INS office for more than 3 years. Since only data relating to approved I-130 petitions have been reaching the consular posts, many qualifying applicants have been turned down due to the mistaken belief on the part of consular officers that the underlying I-130 petition must be approved. According to a U.S. Department of State cable forwarded to consular posts just this week, V visas can indeed be issued to such I-130 beneficiaries, except that the INS Service Center at issue must take measures to notify the National Visa Center (State Department) that the I-130 is indeed pending. And according to the cable, this communication can be accomplished by the I-130 petitioning relative in the U.S. contacting the appropriate INS Service Center and requesting that a fax be forwarded to the National Visa Center confirming that the I-130 is still pending.

However, if one is so lucky as to be able to get an INS Information Officer at one of the INS Service Centers on the telephone, a better idea, in my mind, would be to inquire as to why the I-130 is still pending in the first place. Getting the I-130 adjudicated and approved will guarantee that the file will be forwarded to the Department of State. Thus, the first goal of any contact with the INS Service Center processing the I-130, is to investigate the status of the petition and the reasons why a decision has yet to be issued (after more than 3 years). From there, if no approval seems forthcoming, then a request for a notification to the State Department that the I-130 is still pending is in order.

The other big question is whether separate I-130 petitions must be pending for a spouse and all derivative children in order for V visas to be issued to all parties, as opposed to a single I-130 petition filed on behalf of the spouse, with the children “riding” as derivatives. The answer is no. If only a single I-130 petition is pending on behalf of the permanent resident’s spouse, then any children of that spouse will also qualify for derivative V visas – and without an individual I-130 filed on each of the children’s behalf.

Further information and the latest news regarding the V visa can be accessed through the U.S. Department of State’s website. (see resource links at www.usavisacounsel.com)

DV-2003 Visa Lottery to Begin October 1, 2001

For those who are NOT natives of the Philippines, Canada, Mexico, England, Canada, Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Pakistan, China, South Korea, Taiwan and Vietnam, a new visa lottery will commence October 1, 2001 and continue through October 31, 2001. Those picked may be eligible to obtain immigrant visas (“green cards”) whether they reside in the U.S. or abroad.

Applicants may enter only once, and the principal applicant (if a family is involved) must be able to document that he/she possesses a high school degree OR at least two years experience as a skilled or professional worker.

For more information regarding rules and how to enter, contact the U.S. Department of State via the Internet (accessible as a resource link to www.usavisacounsel.com) or by calling (202)331-7199.

Individuals seeking legal assistance in applying for the visa lottery should be careful not to pay more than $50.00, or at most $100.00, since the instructions are fairly simple and no attorney “connection” can increase an applicant’s chances of being selected.