V Visa Status Now Available for Applicants Already in U.S.
October 12, 2001

As previously discussed in this column, among the provisions included in the recently enacted Legal Immigration Family Equity Act, or “LIFE Act”, are new avenues by which certain spouses and under 21 year old children of U.S. lawful permanent residents can obtain immigration benefits. For qualifying relatives outside the U.S., the benefits include the ability to travel to the U.S. to be reunited with their permanent resident spouse or parent and live and work legally in the U.S. For those already in the U.S, whether legally or without status, the law enables such relatives to apply for lawful status and employment authorization while they await visa availability in the Family Second Preference Category. It is this latter category of applicants that the recently released regulations benefit.

Who are the qualifying relatives? Again, A) if you are the spouse or under 21 year old child of a lawful permanent resident, AND B) are the beneficiary (or derivative child) of an I-130 petition filed with an INS Service Center prior to December 21, 2000, AND C) the petition has been pending for more than 3 years (whether approved and just awaiting visa availability, or still unadjudicated by INS), you are or will become eligible for V visa status.

For those outside the U.S., a mechanism has already been put into place for eligible applicants to be contacted by their nearest U.S. consular post for V visa processing. Those who feel they are qualified for V visa issuance, but are not contacted, are advised to visit the post in question to obtain more information.

For those already in the U.S. – whether with status, out of status, with no status (without inspection) or even in removal/deportation proceedings, an avenue has been established by which applicants can submit their paperwork to facilitate a change of status to V visa status, a status which establishes an applicant’s right to live and work in the U.S. while awaiting further I-130 processing or Family Second Preference A visa availability. It is important to note, however, that individuals who entered the U.S. on visas obtained under false pretenses (e.g. assumed name) or who have been convicted of one or more criminal offenses will want to think twice before submitting such filings, as obstacles to obtaining final approval will surely present themselves.

Filing Procedure

Applicants must complete Form I-539, pursuant to the new I-539 Supplement A instruction sheet, and attach proof of the pending or approved I-130 petition, such as a copy of the I-797 Notice of Action Receipt or Approval Notice. A completed and sealed Form I-693 medical examination report (prepared by an INS designated physician) must also be submitted. Those interested in obtaining an Employment Authorization Document (or “work permit”) should also file form I-765 simultaneously along with the I-539. Although it is not definite at this point, applicants may also end up being requested to present the old I-134 Affidavit of Support.

Once approved, the applicant will be granted V status and employment authorization for a period of 2 years. If eligible, qualified applicants can file to renew their V status and employment authorization for additional 2-year periods, up until the time an immigrant visa becomes available and they qualify to file for permanent resident status.

All applications, along with supporting documentation and filing fees must be mailed to: U.S. INS, P.O. Box 7216, Chicago, IL 60680-7216.

For more information about the V visa and the above filing procedure, visit your local INS District Office or log onto my website at www.usavisacounsel.com, and proceed to the Resource Link section. From there, the U.S. Immigration & Naturalization Service and State Department links are accessible.