[Federal Register Volume 66, Number 174 (Friday, September 7, 2001)]
[Rules and Regulations]
[Pages 46697-46705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22151]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 66, No. 174 / Friday, September 7, 2001 /
Rules and Regulations
[[Page 46697]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 214, 245, 248, 274a, and 299
[INS No. 2117-01; AG Order No. 2502-2001]
RIN 1115-AG08
V Nonimmigrant Classification; Spouses and Children of Lawful
Permanent Residents
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule implements a new V nonimmigrant classification for
certain spouses and children of lawful permanent resident aliens that
was added by section 1102 of the Legal Immigration Family Equity Act
(LIFE) of 2000, Public Law 106-553, effective on December 21, 2000. To
be eligible for this new nonimmigrant category, the alien must be the
beneficiary of an immigrant visa petition that has been pending with
the Immigration and Naturalization Service (Service) for at least 3
years, or that has been approved and 3 years have passed since the
filing date. Eligible aliens may enter and work in the United States,
and continue to reside here while they wait for the immigrant visa
petition to be approved; their priority date to be reached for filing
for adjustment of status or an application for an immigrant visa; and
the adjudication of that application. This interim rule sets forth the
eligibility standards for V classification and the procedures for
changing to V nonimmigrant status while in the United States, and for
obtaining employment authorization based on V nonimmigrant status.
DATES: Effective date. This rule is effective on September 7, 2001.
Comment date. Comments must be submitted on or before November 6,
2001.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street NW, Room 4034, Washington, DC 20536, via fax to
(202) 305-0143, or via email to [email protected]. To ensure proper
handling, please reference the INS No. 2117-01 on your correspondence.
Comments are available for public inspection at this location by
calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Michael Valverde, Residence and Status
Branch, Immigration and Naturalization Service, 425 I Street, NW, Room
3214, Washington, DC 20536, Telephone (202) 514-4754.
SUPPLEMENTARY INFORMATION:
Background
Section 1102 of the LIFE Act amends the Immigration and Nationality
Act, as amended (8 U.S.C. 1101, et seq.) (Act), in three ways:
(1) Section 1102 amends section 101(a)(15) of the Act (8 U.S.C.
1101(a)(15)) to add a new nonimmigrant classification, paragraph (V),
for certain spouses and children of lawful permanent residents (LPRs),
who have waited at least 3 years for the availability of an immigrant
visa number in the family-based second (F2A) preference category in
accordance with the State Department's monthly Visa Bulletin. Eligible
spouses and children (under 21 years old and unmarried) of LPRs outside
the United States may apply for a V nonimmigrant visa abroad and for
admission to the United States as a V nonimmigrant. If already present
in the United States, eligible aliens may obtain V nonimmigrant status
while remaining in the United States.
(2) Section 1102 of LIFE also adds section 214(o) to the Act (8
U.S.C. 1184(o)) in order to provide the terms and conditions of V
nonimmigrant status and employment authorization.
(3) Section 1102 of LIFE makes conforming amendments to sections
214(b) and 214(h) of the Act (8 U.S.C. 1184(b) and 1184(h)) to include
reference to the V nonimmigrant classification.
Who Is Eligible for V Nonimmigrant Status?
To be eligible for V nonimmigrant status, the alien must be the
beneficiary of an immigrant visa petition, Form I-130, Petition for
Alien Relative, that was filed by the LPR on or before December 21,
2000, under the F2A preference category of section 203(a)(2)(A) of the
Act (8 U.S.C. 1153(a)(2)(A)). The child of a petitioned-for spouse or
child beneficiary is also eligible for such status if he or she is
accompanying or following to join such an alien.
The alien is eligible for V status if the Form I-130 immigrant visa
petition has been pending for 3 years or more. In addition, the alien
is eligible for V status after the visa petition has been approved and
3 years have passed since the date of filing, in either of the
following circumstances:
(1) An immigrant visa number is not yet available to the
beneficiary; or
(2) If an immigrant visa number is available to the beneficiary,
his or her application for an immigrant visa abroad or application for
adjustment of status under section 245 of the Act (8 U.S.C. 1255) is
still pending.
An eligible spouse of an LPR will be classified as V-1. An eligible
child of an LPR will be classified as V-2. The child of either, if
eligible to accompany or follow to join the principal alien under
section 203(d) of the Act (8 U.S.C. 1153(d)), will be classified as V-
3.
An alien eligible for V nonimmigrant status may apply for a V
nonimmigrant visa at a consular office abroad or, if the alien is
already in the United States, he or she may apply to the Service for
classification as a V nonimmigrant. An alien in V nonimmigrant status
in the United States may obtain employment authorization.
What Are the Terms and Conditions of V Nonimmigrant Status?
Aliens in V-1, V-2, or V-3 nonimmigrant status are authorized to
remain in the United States until their authorized period of admission
expires, or until one of the following is denied: (1) the Form I-130,
Petition for Alien Relative, filed by the LPR on behalf of his or her
spouse or child; (2) the alien's application for an immigrant visa; or
(3) the alien's application for adjustment of status. If the V-1 or V-2
alien's status is terminated for any of these reasons,
[[Page 46698]]
the V-3 status of any derivative child will simultaneously be
terminated.
Aliens in the United States in V nonimmigrant status must abide by
the terms and conditions of that status as set forth in section 214 of
the Act (8 U.S.C. 1184). Since V nonimmigrants are admitted to the
United States to await the availability of an immigrant visa number in
the F2A preference category (spouses and minor children of lawful
permanent residents), in accordance with the State Department's monthly
Visa Bulletin, they must continue to be eligible for that preference
category.
An alien who is no longer eligible for the F2A preference category
described in section 203(a)(2)(A) of the Act (8 U.S.C. 1153(a)(2)(A))
is no longer eligible for V nonimmigrant status. For example, an alien
would no longer be eligible if the qualifying marriage that forms the
basis for the Form I-130 is terminated or the child petitioned for on
the Form I-130 reaches the age of 21. If the Form I-130 is withdrawn by
the petitioner, or if it is revoked under section 205 of the Act (8
U.S.C. 1155), then the alien is no longer considered to be in valid V
classification beginning 30 days after the withdrawal or event that
causes the revocation (8 U.S.C. 1184(p)(3)). (However, the Service
notes that a spouse or child of an abusive lawful permanent resident
may be eligible in certain circumstances to file a self-petition for
classification as a preference immigrant, as provided in 8 CFR 204.4,
even if the LPR has withdrawn the Form I-130 that was filed on his or
her behalf.)
How Can an Eligible Alien Who Is Outside the United States Obtain a
V Nonimmigrant Visa?
Eligible aliens who live abroad may obtain a V nonimmigrant visa
from the Department of State by applying at a United States consular
office. Eligible applicants must demonstrate that they meet the
requirements of section 101(a)(15)(V) of the Act (8 U.S.C.
1101(a)(15)(V)).
The Department of State published an interim regulation on April
16, 2001, at 66 FR 19390 (22 CFR 41.86), that sets forth procedures for
applying for a V nonimmigrant visa at a consular office abroad.
Waiver of Ground of Inadmissibility
Section 1102(b) of LIFE adds section 214(o) to the Act, (8 U.S.C.
1184(o)) which, among other things, provides that aliens applying for
admission to the United States in V nonimmigrant status are exempt from
the ground of inadmissibility found at section 212(a)(9)(B) of the Act
(8 U.S.C. 1182(a)(9)(B)), relating to unlawful presence. This means
that, for the purpose of admission as a V nonimmigrant, aliens who have
accrued more than 180 days of unlawful presence in the United States
are not subject to the 3- and 10-year bars to admission.
It is important to note that, as discussed in more depth below,
section 214(o) of the Act waives this ground of inadmissibility only
for V nonimmigrant admissions (or changing to a V nonimmigrant status),
and not for purposes of obtaining immigrant status. When a V
nonimmigrant applies for adjustment or for an immigrant visa to obtain
permanent resident status, he or she is still subject to the ground of
inadmissibility under section 212(a)(9)(B) of the Act relating to
unlawful presence and the bars to admissibility.
How Can an Eligible Alien Who Is in the United States Obtain V
Nonimmigrant Status?
Beginning September 7, 2001, eligible aliens in the United States
who wish to obtain V nonimmigrant status must file the Form I-539,
Application to Change Nonimmigrant Status, with the Service and pay the
application fee, currently $120, required by 8 CFR 103.7(b)(1), or
request a waiver of the application fee in accordance with 8 CFR
103.7(c). All aliens 14 to 79 years of age who are filing Form I-539 to
obtain V nonimmigrant status must submit a service fee for
fingerprinting, currently $25, with their application. In addition to
the instructions listed on the Form I-539, all aliens applying for V
nonimmigrant status must follow the supplemental instructions found on
Supplement A to Form I-539. Applications should be submitted to: U.S.
Immigration and Naturalization Service, P.O. Box 7216, Chicago, IL
60680-7216.
Supplement A to Form I-539 includes instructions specific to
applicants for V nonimmigrant status in addition to those found on Form
I-539.
Although the statute uses the term ``adjust,'' the Service views
the conversion to V nonimmigrant status as a ``change'' from one
(usually) nonimmigrant status to another nonimmigrant status, rather
than an ``adjustment'' of status from nonimmigrant status to lawful
permanent resident (LPR) status. This is especially so because V
nonimmigrants are required to be pursuing LPR status through the
adjustment of status or the immigrant visa process. For these reasons,
the Service is planning to use the Form I-539 and the term ``change''
of status.
Medical Examination
An applicant applying for V nonimmigrant status must submit, along
with his or her application, the results of a medical examination by a
civil surgeon. The alien must submit this information on Form I-693,
Medical Examination of Aliens Seeking Adjustment of Status, completed
by a civil surgeon. Each Service district office maintains a list of
physicians in the area who have been designated as civil surgeons by
the Service. An applicant for V nonimmigrant status is not required to
submit the vaccination supplement to Form I-693.
Fingerprinting Appointment
After receiving the application and proper fees, the applicant will
be scheduled for fingerprinting at an Application Support Center (ASC).
An applicant who does not appear for fingerprinting without previously
notifying the Service may have his or her application denied under 8
CFR 103.2(b)(13).
Evidence
An alien applying for V nonimmigrant status should submit proof of
filing of the immigrant petition that qualifies the alien for V status.
Proof of filing may be in the form of Form I-797, Notice of Action,
which serves as a receipt of the petition or as a notice of approval,
or a receipt for the filed petition or notice of approval issued by a
local district office. If the alien does not have such proof, the
Service will review other forms of evidence, such as correspondence to
or from the Service regarding a pending petition.
If the alien does not have any of the above items, but believes he
or she is a beneficiary of a qualifying petition and as such is
eligible for V nonimmigrant status, he or she should provide
information indicating where and when the petition was filed, the name
and alien number of the petitioner, and the names of all the
beneficiaries.
Affidavit of Support
Aliens entering as V nonimmigrant aliens are not subject to the
legally binding Affidavit of Support requirements of section 213A of
the Act (8 U.S.C. 1183a) and 8 CFR part 213A, until they file for
adjustment of status to LPR. However, the Service may request that an
applicant for V status submit the non-binding Affidavit of Support,
Form I-134.
[[Page 46699]]
Grounds of Inadmissibility
Aliens applying to the Service for V nonimmigrant status must be
eligible for admission to the United States. This means they must not
be inadmissible under any of the grounds found at section 212(a) of the
Act, except those from which the LIFE Act explicitly exempts them.
Section 214(o)(3) of the Act, as added by the LIFE Act, exempts an
alien applying to obtain V nonimmigrant status from three grounds of
inadmissibility: section 212(a)(6)(A) (aliens present without admission
or parole); section 212(a)(7) (aliens not in possession of a valid,
unexpired passport or immigrant or nonimmigrant visa); and section
212(a)(9)(B) (aliens unlawfully present). The fact that an alien is
inadmissible under one of these three grounds does not make him or her
ineligible to obtain the V nonimmigrant status. Thus, the alien need
not have been maintaining lawful status at the time of applying to the
Service to obtain V nonimmigrant status. An alien who is inadmissible
as a nonimmigrant on any other ground under section 212(a) of the Act
may apply to the Service for any available nonimmigrant waivers.
It is important to note that while section 214(o) of the Act waives
these three grounds of inadmissibility for change to V nonimmigrant
status, there is no corresponding exemption of these same grounds of
inadmissibility when an alien in the V nonimmigrant status later
applies for an immigrant visa or for adjustment of status to LPR. For
example, if an alien in V nonimmigrant status, who has accrued more
than 1 year of unlawful presence in the United States, travels abroad
and is readmitted as a V nonimmigrant, that alien, when he or she
departs the United States, triggers the 10-year bar to admission under
section 212(a)(9)(B) of the Act. Section 214(o) exempts him or her from
this ground of inadmissibility for purposes of obtaining V nonimmigrant
status, but does not exempt the alien from that ground of
inadmissibility when he or she later applies for an immigrant visa or
for adjustment to LPR status. That means that he or she will be unable
to adjust status to LPR for 10 years from the date of departure, unless
an individual waiver for that ground of inadmissibility is granted.
To the extent that he or she may be eligible, the alien applying to
adjust status may apply for the waivers found at section 212(g), (h),
(i), and (a)(9)(B)(v) of the Act.
What Will Be the Period of Authorized Stay for V Nonimmigrants?
The Service will give aliens granted admission to the United States
in the V nonimmigrant classification a maximum 2-year period of
admission. Similarly, the Service will give aliens approved for a
change of status to V nonimmigrant status a maximum 2-year period of
admission. In either case, the period of V nonimmigrant status may be
extended, as discussed below, if the alien continues to remain eligible
for V status.
Children in V-2 or V-3 Status Who Reach the Age of 21 or Get Married
If an alien is 19 years old or older and applies for admission to
the United States in V-2 or V-3 status, or for change to V-2 or V-3
status in the United States, he or she will be granted a period of
admission that will end on the day before the alien turns 21 years of
age.
One of the eligibility requirements for V classification is that an
alien must be the beneficiary of a petition for status filed under
section 203(a)(2)(A) of the Act--the Form I-130 for spouses or children
of an LPR. See Pub. L. No. 106-553, sec. 1102(a)(3), 114 Stat. At
2762A-142. The term ``child'' is defined in section 101(b)(1) of the
Act to mean, with certain qualifications, an unmarried person under 21
years of age. See 8 U.S.C. 1101(b)(1). Since the eligibility criteria
of section 1102(a) do not include section 203(a)(2)(B) of the Act
(unmarried sons or daughters of an LPR), an alien 21 years of age or
over who is the son or daughter of an LPR is not eligible for V-2
classification. Likewise, an alien who gets married is no longer
eligible for V classification as a ``child.'' Therefore, if the child
of an LPR is admitted to the United States as a V-2 nonimmigrant and
subsequently turns 21 or gets married, he or she is no longer eligible
for that nonimmigrant status. Since the law provides for V-3 status for
a derivative child of a principal alien, an alien will no longer be
eligible for that nonimmigrant status after turning 21 or getting
married.
How Can an Alien Obtain Employment Authorization Based on V
Nonimmigrant Status?
An alien in valid V nonimmigrant status is eligible for employment
authorization as long as he or she remains in that status. In order to
obtain employment authorization, the alien must submit Form I-765,
Application for Employment Authorization, with the application fee,
currently $100, as required by 8 CFR 103.7(b)(1), or a request for a
fee waiver in accordance with 8 CFR 103.7(c). An alien in V
nonimmigrant status should submit his or her Form I-765 to: U.S.
Immigration and Naturalization Service, P.O. Box 7216, Chicago, IL
60680-7216.
If the alien's application for employment authorization is
approved, the Service will grant the alien employment authorization for
a period of time to match his or her period of authorized stay as a V
nonimmigrant. An alien already in the United States who is applying for
V status may file for employment authorization at the same time he or
she files Form I-539 and Supplement A to Form I-539.
How Can an Alien Obtain an Extension of His or Her V Nonimmigrant
Status?
If an alien's period of admission is about to expire and the alien
continues to be eligible for V nonimmigrant status, the alien may apply
for an extension, using Form I-539 and Supplement A to Form I-539.
Applications for extension of V nonimmigrant status should be submitted
with the application fee for Form I-539, currently $120, as required by
8 CFR 103.7(b)(1), or the alien may request a fee waiver in accordance
with 8 CFR 103.7(c). Applicants for an extension of V nonimmigrant
status do not need to submit the fingerprinting service fee, nor do
they need to have a medical examination or submit Form I-693 (medical
examination). Applications should be submitted to: U.S. Immigration and
Naturalization Service, P.O. Box 7216, Chicago, IL 60680-7216.
An alien granted an extension of V nonimmigrant status will be
given a period of authorized stay not to exceed 2 years. A child in V
nonimmigrant status who is 19 years old or older will be granted an
extension valid until the day before his or her 21st birthday.
A V nonimmigrant who has filed an application for adjustment of
status (Form I-485) is still eligible for extension of V nonimmigrant
status as long as the adjustment application remains pending. However,
any applicant for adjustment of status can obtain many of the same
benefits as are provided for in the V status. Applicants for adjustment
of status are considered to be in a period of stay authorized by the
Attorney General while their application remains pending, and they are
eligible to obtain employment authorization and to apply for advance
parole to return to the United States after travel abroad.
[[Page 46700]]
What if an Alien Has an Approved Petition and a Current Priority
Date but Does Not Have a Pending Application for an Immigrant Visa
Abroad or an Application for Adjustment of Status?
The V visa classification includes aliens who are the beneficiary
of an approved immigrant visa petition that was filed more than 3 years
earlier, during the time that an immigrant visa is not available or
during the time that an application for an immigrant visa abroad or for
adjustment of status under section 245 of the Act is still pending.
However, the Service recognizes that there may be limited circumstances
in which an eligible spouse or child has an immigrant visa number
available, but has not yet applied either for an immigrant visa abroad
or for adjustment to LPR status.
In order to provide aliens time to file the appropriate application
when their V status is expiring, the Service will grant a one-time 6-
month extension of V nonimmigrant status to such aliens if they are
otherwise eligible. Similarly, for an alien in this situation who is
applying for admission to the United States on the basis of a V visa
that is otherwise valid, the Service will admit the alien for a 6-month
period in order to provide time to file the appropriate application.
In either case, if the alien has not filed either an application
for adjustment of status or for an immigrant visa by the end of the 6-
month period, the alien will no longer be able to extend his or her V
nonimmigrant status.
May an Alien Travel Abroad While in V Nonimmigrant Status?
An alien who obtained a V nonimmigrant visa from a consular office
abroad may be inspected and admitted to the United States in V
nonimmigrant status after traveling abroad as long as the alien
possesses a valid, unexpired V visa and remains eligible for V
nonimmigrant status.
However, as a general matter, an alien who was granted V
nonimmigrant status in the United States by the Service will need to
obtain a V visa from a consular office abroad in order to be inspected
and admitted to the United States as a V nonimmigrant after traveling
abroad. (The alien will not need to apply for a V visa abroad in order
to be admitted if he or she has traveled to contiguous territories or
adjacent islands, has another valid visa, and is eligible for automatic
revalidation.) Procedures for obtaining a V nonimmigrant visa abroad
are found in the Department of State regulations at 22 CFR 41.86 (66 FR
19390, April 16, 2001). In addition, the alien must remain eligible for
admission in V nonimmigrant status.
A V nonimmigrant with a pending Form I-485, Application to Register
Permanent Residence or Adjust Status, does not need to obtain advance
parole prior to traveling abroad. Section 1102(d) of the LIFE Act
amends section 214 of the Act to include V nonimmigrants in the list of
nonimmigrant classifications that may have dual intent. This means that
an alien in V nonimmigrant status may be considered a nonimmigrant
despite the fact that he or she is an intending immigrant with a filed
application for adjustment of status or an immigrant visa. Aliens with
dual intent, including V nonimmigrants, do not need to obtain advance
parole to protect their pending applications for adjustment of status
from being considered abandoned when they depart the United States.
When Is an Alien's V Nonimmigrant Status Terminated?
Under section 214(o)(1)(B) of the Act, as added by section 1102 of
LIFE, the period of authorized admission as a V nonimmigrant terminates
30 days after any of the following is denied:
The qualifying Form I-130;
The alien's application for an immigrant visa pursuant to
the approval of such Form I-130; or
The alien's Form I-485 under section 245 of the Act
pursuant to the approval of such Form I-130.
In the case of a derivative child (V-3), the period of admission is
terminated when the Form I-130, Application for Immigrant Visa, or Form
I-485 filed by the principal alien (V-1 or V-2) is denied.
The Service considers the withdrawal or revocation of an approved
Form I-130 to be the equivalent of a denial. In addition, as discussed
above, an alien spouse will lose V-1 status upon divorcing the LPR who
filed the immigrant visa petition, and an alien child will lose V-2 or
V-3 status upon turning 21 or marrying, because he or she will no
longer satisfy the statutory definition of a ``child.''
Unless the alien has some other status under the immigration laws,
he or she will become removable upon termination of the V status, and
unlawful presence will begin to accrue.
What Happens if the Petitioner of the Form I-130 That Qualified the
Beneficiaries for V Nonimmigrant Status Naturalizes?
If the LPR petitioner of the Form I-130 that qualified the
beneficiaries for V nonimmigrant status becomes a United States
citizen, the petitioner's spouse and children (and any derivative
child) will no longer qualify for V nonimmigrant status as defined
under section 101(a)(15)(V) of the Act. Their V status will expire when
the current period of authorized admission ends, and they will not be
eligible to renew V status.
However, as the spouse or child of a person who has now become a
United States citizen, the principal beneficiaries will be immediate
relatives as defined in section 201(b)(2)(A) of the Act (8 U.S.C.
1151(b)(2)(A)). As provided in 8 CFR 204.2(i)(3), the Form I-130 filed
by the LPR automatically will be upgraded to an immediate relative
petition.
An immediate relative must still be the beneficiary of a Form I-
130, but he or she does not need to wait for an immigrant visa number
to be available before filing an application for adjustment of status.
A V-1 or V-2 alien with a pending or approved Form I-130 who becomes an
immediate relative may apply for adjustment of status (Form I-485)
immediately if he or she has not already done so. If the V-1 or V-2
alien has already filed a Form I-485 based on an approved Form I-130 at
the time the LPR naturalizes, he or she does not need to file any
additional forms.
It is important to note that a U.S. citizen must file a new
immigrant visa petition (Form I-130) and an application for adjustment
of status (Form I-485) on behalf of any child who was in V-3 status, in
order for that child to adjust status. Derivative children in V-3
status were not covered by the Form I-130 previously filed by the LPR
on behalf of his or her spouse (V-1) and children (V-2).
Each alien who is the beneficiary of a pending Form I-485 will be
able to obtain work authorization while his or her adjustment
application is pending.
What Happens if an Alien Is Already in Immigration Proceedings?
If an alien is already in immigration proceedings and believes that
he or she may be eligible to apply for V nonimmigrant status, he or she
should request before the immigration judge or the Board that the
proceedings be administratively closed (or, if the alien has a motion
pending before the Board, that the motion be indefinitely continued),
in order to allow the alien to pursue an application for V nonimmigrant
status with the Service. If the alien appears eligible for V
nonimmigrant status, the immigration judge or the Board, whichever has
jurisdiction, shall administratively close the proceeding or continue
the motion indefinitely. In the event that the
[[Page 46701]]
Service finds an alien eligible for the V classification, the Service
can adjudicate the application for change of status. In the event that
the Service finds an alien ineligible for V status, the Service shall
recommence proceedings by filing a motion to re-calendar.
If an Alien Is Already the Subject of a Final Order of Removal,
Deportation or Exclusion, What Is the Procedure for Moving To
Reopen Based on V Eligibility?
The LIFE Act Amendments contain no special provisions for reopening
proceedings where an alien is already the subject of a final order of
removal, deportation, or exclusion because that alien is now eligible
for V nonimmigrant status. Accordingly, motions to reopen will be
governed by the Department of Justice's current rules regarding motions
to reopen, 8 CFR 3.23 (before the Immigration Judge) and 3.2 (before
the Board of Immigration Appeals), which contain time and numerical
limitations on the filing of such motions. See 8 CFR 3.23(b)(1) and
3.2(c)(2).
The rules, however, do provide for limited exceptions to these time
and numerical limitations, among which is a motion to reopen filed
jointly by the alien and the Service counsel in the case. Therefore, an
alien who is the subject of a final order who alleges eligibility for V
nonimmigrant status may contact the Service counsel to request the
filing of a joint motion to reopen. The Service will exercise its
discretion in considering such requests. The Service's discretion to
join in motions to reopen, however, cannot provide or restore
eligibility for discretionary relief that is otherwise barred by the
statute (such as in the case of aliens whose orders were entered in
absentia for failure to appear, or aliens who failed to voluntarily
depart the United States within the time period specified).
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). This
interim rule establishes the proper rules and filing procedures for the
part of the LIFE Act creating a new ``V'' nonimmigrant classification
for spouses and children of lawful permanent resident aliens. According
to the legislative history, Congress enacted the V visa in order to
ameliorate the effects of the long statutory and administrative
backlogs inherent in the immigration of alien relatives by providing
for expeditious family reunification. The ``Joint Memorandum Concerning
the Legal Immigration Family Equity Act of 2000 and the LIFE Act
Amendments of 2000,'' submitted in lieu of a committee report, states
that:
[The LIFE Act] sought to provide a new mechanism to address the
problem created by the long backlog of immigrant visa applications
for spouses and minor children of lawful permanent residents, who
are currently having to wait many years for a visa to become
available to them. Right now, many of these individuals are even
precluded from visiting their spouse or parent in the United States
on account of an administrative interpretation that the filing of
their petition casts doubt on the bona fides of their applications
for visitor visas, indicating that instead they are intending
immigrants* * *. The purpose of the V and K visas is to provide a
speedy mechanism by which family members may be reunited.
Public Law 106-553 became effective on December 21, 2000, and
therefore, immediate implementation of this rule without prior notice
and comment is necessary to further the important public interests
discussed above in the law's legislative history. Publishing a proposed
rule would mean that the rule would not take effect immediately, and
because of the necessary comment period, would result, contrary to the
public interest, in a lengthy delay in processing for those already
eligible for this benefit. In fact, eligible aliens have already filed
applications with the Service's local offices while the Service has
been in the process of drafting regulations. Many of these applicants
are filing on the wrong forms, which do not provide sufficient
information for adjudication decisions. The Service has no other
recourse but to return the incorrect forms. Therefore, it is of
significant importance that the Service publish regulations to
establish appropriate procedures as soon as possible. Since further
delays with respect to this interim rule are contrary to the public
interest, there is good cause under 5 U.S.C. 553 to forgo the prior
publication of a proposed rule and to make this rule effective upon the
date of publication in the Federal Register.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities because this
regulation affects family members of lawful permanent residents. It
does not have an effect on small entities as that term is defined in 5
U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 804). This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
The Service estimates that this rule will result in an increase in
Service revenue of $35.8 million in Fiscal Year (FY) 2001, $8.8 million
in FY 2002, and $1.2 million in FY 2003.
Executive Order 12866
This rule is considered by the Department of Justice to be a
significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.
Assessment of Regulatory Impact on the Family
This immigration law facilitates reunification of families by
according preferences to aliens who are the spouse or children of
lawful permanent resident aliens. This regulation implements an
additional nonimmigrant classification through which these aliens may
be reunified with their family member. For this reason, the Attorney
General has determined, as provided by the Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999, Public Law 105-277,
Sec. 654, 112 Stat. 2681, 2681-528-24 (1998) (5 U.S.C. 601, note), that
this rule will not have an adverse impact on the strength or stability
of the family.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the
[[Page 46702]]
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Executive Order 12988
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information collection requirement contained in this rule (Form
I-539, Supplement A) has been submitted to the Office of Management and
Budget for emergency review and approval under the provisions of the
Paperwork Reduction Act. The emergency clearance is good for 180 days
from the date of OMB approval. Prior to its renewal by OMB, INS will
publish a notice in the Federal Register soliciting comment on the
form. The OMB control number for this collection is contained in 8 CFR
299.5, Display of control numbers.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1282;
sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Section 141 if the
Compacts of Free Association with the Federated States of Micronesia
and the Republic of the Marshall Islands, and with the Government of
Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR part
2.
2. Section 214.1(a)(2) is amended by:
a. Adding the entry for ``101(a)(15)(V)'' in proper sequential
order; and
b. Designating the existing note as ``Note 1'' and by adding a
``Note 2'' to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(2) * * *
------------------------------------------------------------------------
Section Designation
------------------------------------------------------------------------
* * * * *
101(a)(15)(V)............................. V-1, V-2, or V-3
* * * * *
Note: The classification designation V-1 is for the spouse of a lawful
permanent resident; the classification designation V-2 is for the
principal beneficiary of an I-130 who is the child of an LPR; the
classification V-3 is for the derivative child of a V-1 or V-2 alien.
------------------------------------------------------------------------
Sec. 214.2 [Amended]
3. Section 214.2 is amended by adding and reserving paragraph (u)
and by adding paragraph (v), to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(u) [Reserved]
(v) Certain spouses and children of LPRs. Section 214.15 of this
chapter provides the procedures and requirements pertaining to V
nonimmigrant status.
4. Section 214.15 is added to read as follows:
Sec. 214.15 Certain spouses and children of lawful permanent
residents.
(a) Aliens abroad. Under section 101(a)(15)(v) of the Act, certain
eligible spouses and children of lawful permanent residents may apply
for a V nonimmigrant visa at a consular office abroad and be admitted
to the United States in V-1 (spouse), V-2 (child), or V-3 (dependent
child of the spouse or child who is accompanying or following to join
the principal beneficiary) nonimmigrant status to await the approval
of:
(1) A relative visa petition;
(2) The availability of an immigrant visa number; or
(3) Lawful permanent resident (LPR) status through adjustment of
status or an immigrant visa.
(b) Aliens already in the United States. Eligible aliens already in
the United States may apply to the Service to obtain V nonimmigrant
status for the same purpose. Aliens in the United States in V
nonimmigrant status are entitled to reside in the United States as V
nonimmigrants and obtain employment authorization.
(c) Eligibility. Subject to section 214(o) of the Act, an alien who
is the beneficiary (including a child of the principal alien, if
eligible to receive a visa under section 203(d) of the Act) of an
immigrant visa petition to accord a status under section 203(a)(2)(A)
of the Act that was filed with the Service under section 204 of the Act
on or before December 21, 2000, may apply for V nonimmigrant status if:
(1) Such immigrant visa petition has been pending for 3 years or
more; or
(2) Such petition has been approved, and 3 or more years have
passed since such filing date, in either of the following
circumstances:
(i) An immigrant visa is not immediately available to the alien
because of a waiting list of applicants for visas under section
203(a)(2)(A) of the Act; or
(ii) The alien's application for an immigrant visa, or the alien's
application for adjustment of status under section 245 of the Act,
pursuant to the approval of such petition, remains pending.
(d) The definition of ``pending''. For purposes of this section, a
pending petition is defined as a petition to accord a status under
section 203(a)(2)(A) of the Act that was filed with the Service under
section 204 of the Act on or before December 21, 2000, that has not
been adjudicated. In addition, the petition must have been properly
filed according to Sec. 103.2(a) of this chapter, and if, subsequent to
filing, the Service returns the petition to the applicant for any
reason or makes a request for evidence, the petitioner must satisfy the
Service request within the time period set forth at Sec. 103.2(b)(8) of
this chapter. If the Service denies a petition, but the petitioner
appeals that decision, the petition will be considered pending until
the administrative appeal is decided by the Service. A petition
rejected by the Service as not properly filed is not considered to be
pending.
(e) Classification process for aliens outside the United States.
(1) V nonimmigrant visa. An eligible alien may obtain a V
nonimmigrant visa from the Department of State at a
[[Page 46703]]
consular office abroad pursuant to the procedures set forth in 22 CFR
41.86.
(2) Aliens applying for admission to the United States as a V
nonimmigrant at a port-of-entry. Aliens applying under section 235 of
the Act for admission to the United States at a port-of-entry as a V
nonimmigrant must have a visa in the appropriate category. Such aliens
are exempt from the ground of inadmissibility under section
212(a)(9)(B) of the Act.
(f) Application by aliens in the United States. An alien described
in paragraph (c) of this section who is in the United States may apply
to the Service to obtain V nonimmigrant status pursuant to the
procedures set forth in this section and 8 CFR part 248. The alien must
be admissible to the United States, except that, in determining the
alien's admissibility in V nonimmigrant status, sections 212(a)(6)(A),
(a)(7), and (a)(9)(B) of the Act do not apply.
(1) Contents of application. To apply for V nonimmigrant status, an
eligible alien must submit:
(i) Form I-539, Application to Extend/Change Nonimmigrant Status,
with the fee required by Sec. 103.7(b)(1) of this chapter;
(ii) The fingerprint fee as required by Sec. 103.2(e)(4) of this
chapter;
(iii) Form I-693, Medical Examination of Aliens Seeking Adjustment
of Status, without the vaccination supplement; and
(iv) Evidence of eligibility as described by Supplement A to Form
I-539 and in paragraph (f)(2) of this section.
(2) Evidence. Supplement A to Form I-539 provides instructions
regarding the submission of evidence. An alien applying for V
nonimmigrant status with the Service should submit proof of filing of
the immigrant petition that qualifies the alien for V status. Proof of
filing may include Form I-797, Notice of Action, which serves as a
receipt of the petition or as a notice of approval, or a receipt for a
filed petition or notice of approval issued by a local district office.
If the alien does not have such proof, the Service will review other
forms of evidence, such as correspondence to or from the Service
regarding a pending petition. If the alien does not have any of the
items previously mentioned in this paragraph, but believes he or she is
eligible for V nonimmigrant status, he or she should state where and
when the petition was filed, the name and alien number of the
petitioner, and the names of all beneficiaries (if known).
(g) Period of admission.
(1) Spouse of an LPR. An alien admitted to the United States in V-1
nonimmigrant status (or whose status in the United States is changed to
V-1) will be granted a period of admission not to exceed 2 years.
(2) Child of an LPR or derivative child. An alien admitted to the
United States in V-2 or V-3 nonimmigrant status (or whose status in the
United States is changed to V-2 or V-3) will be granted a period of
admission not to exceed 2 years or the day before the alien's 21st
birthday, whichever comes first.
(3) Extension of status. An alien may apply to the Service for an
extension of V nonimmigrant status pursuant to this part and 8 CFR part
248. Aliens may apply for the extension of V nonimmigrant status,
submitting Form I-539, and the associated filing fee, on or before 120
days before the expiration of their status. If approved, the Service
will grant an extension of status to aliens in V nonimmigrant status
who remain eligible for V nonimmigrant status for a period not to
exceed 2 years, or in the case of a child in V-2 or V-3 status, the day
before the alien's 21st birthday, whichever comes first.
(4) Special rules. The following special rules apply with respect
to aliens who have a current priority date in the United States, but do
not have a pending application for an immigrant visa abroad or an
application to adjust status.
(i) For an otherwise eligible alien who applies for admission to
the United States in a V nonimmigrant category at a designated Port-of-
Entry and has a current priority date but does not have a pending
immigrant visa abroad or application for adjustment of status in the
United States, the Service will admit the alien for a 6-month period
(or to the date of the day before the alien's 21st birthday, as
appropriate).
(ii) For such an alien in the United States who applies for
extension of V nonimmigrant status, the Service will grant a one-time
extension not to exceed 6 months.
(iii) If the alien has not filed an application, either for
adjustment of status or for an immigrant visa within that 6-month
period, the alien cannot extend or be admitted or readmitted to V
nonimmigrant status. If the alien does file an application, either for
adjustment of status or for an immigrant visa within the time allowed,
the alien will continue to be eligible for further extensions of V
nonimmigrant status as provided in this section while that application
remains pending.
(h) Employment authorization. An alien in V nonimmigrant status may
apply to the Service for employment authorization pursuant to this
section and Sec. 274a.12(a)(15) of this chapter. An alien must file
Form I-765, Application for Employment Authorization, with the fee
required by 8 CFR 103.7. The Service will grant employment
authorization to aliens in V nonimmigrant status who remain eligible
for V nonimmigrant status valid for a period equal to the alien's
authorized admission as a V nonimmigrant.
(i) Travel abroad; unlawful presence.--
(1) V nonimmigrant status in the United States. An alien who
applies for and obtains V nonimmigrant status in the United States will
be issued Form I-797, Notice of Action, indicating the alien's V status
in the United States. Form I-797 does not serve as a travel document.
If such an alien departs the United States, he or she must obtain a V
visa from a consular office abroad in order to be readmitted to the
United States as a V nonimmigrant. This visa requirement, however, does
not apply if the alien traveled to contiguous territory or adjacent
islands, possesses another valid visa, and is eligible for automatic
revalidation.
(2) V nonimmigrants with a pending Form I-485. An alien in V
nonimmigrant status with a pending Form I-485 (Application to Register
Permanent Residence or Adjust Status) that was properly filed with the
Service does not have to obtain advance parole in order to prevent the
abandonment of that application when the alien departs the United
States.
(3) Unlawful presence.--
(i) Nonimmigrant admission. An alien otherwise eligible for
admission as a V nonimmigrant is not subject to the ground of
inadmissibility under section 212(a)(9)(B) of the Act. This is true
even if the alien had accrued more than 180 days of unlawful presence
in the United States and is applying for admission as a nonimmigrant
after travel abroad.
(ii) Permanent resident status. A V nonimmigrant alien is subject
to the ground of inadmissibility under section 212(a)(9)(B) of the Act
when applying for an immigrant visa or for adjustment of status to that
of a lawful permanent resident. Therefore, a departure from the United
States at any time after having accrued more than 180 days of unlawful
presence will render the alien inadmissible under that section for the
purpose of adjustment of status or admission as an immigrant, unless he
or she has obtained a waiver under section 212(a)(9)(B)(v) of the Act
or falls within one of the exceptions in section 212(a)(9)(B)(iii) of
the Act.
(j) Termination of status.--
[[Page 46704]]
(1) General. The status of an alien admitted to the United States
as a V nonimmigrant under section 101(a)(15)(V) of the Act shall be
automatically terminated 30 days following the occurrence of any of the
following:
(i) The denial, withdrawal, or revocation of the Form I-130,
Petition for Immediate Relative, filed on behalf of that alien;
(ii) The denial or withdrawal of the immigrant visa application
filed by that alien;
(iii) The denial or withdrawal of the alien's application for
adjustment of status to that of lawful permanent residence;
(iv) The V-1 spouse's divorce from the LPR becomes final; or
(v) The marriage of an alien in V-2 or V-3 status.
(2) Dependents. When a principal alien's V nonimmigrant status is
terminated, the V nonimmigrant status of any alien listed as a V-3
dependent or who is seeking derivative benefits is also terminated.
(3) Appeals. If the denial of the immigrant visa petition is
appealed, the alien's V nonimmigrant status does not terminate until 30
days after the administrative appeal is dismissed.
(4) Violations of status. Nothing in this section precludes the
Service from immediately initiating removal proceedings for other
violations of an alien's V nonimmigrant status.
(k) Naturalization of the petitioner. If the lawful permanent
resident who filed the qualifying Form I-130 immigrant visa petition
subsequently naturalizes, the V nonimmigrant status of the spouse and
any children will terminate after his or her current period of
admission ends. However, in such a case, the alien spouse or child will
be considered an immediate relative of a U.S. citizen as defined in
section 201(b) of the Act and will immediately be eligible to apply for
adjustment of status and related employment authorization. If the V-1
spouse or V-2 child had already filed an application for adjustment of
status by the time the LPR naturalized, a new application for
adjustment will not be required.
(l) Aliens in proceedings. An alien who is already in immigration
proceedings and believes that he or she may have become eligible to
apply for V nonimmigrant status should request before the immigration
judge or the Board, as appropriate, that the proceedings be
administratively closed (or before the Board that a previously-filed
motion for reopening or reconsideration be indefinitely continued) in
order to allow the alien to pursue an application for V nonimmigrant
status with the Service. If the alien appears eligible for V
nonimmigrant status, the immigration judge or the Board, whichever has
jurisdiction, shall administratively close the proceeding or continue
the motion indefinitely. In the event that the Service finds an alien
eligible for V nonimmigrant status, the Service can adjudicate the
change of status under this section. In the event that the Service
finds an alien ineligible for V nonimmigrant status, the Service shall
recommence proceedings by filing a motion to re-calendar.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
5. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
6. Section 245.2 is amended by adding a new paragraph
(a)(4)(ii)(D), to read as follows:
Sec. 245.2 Application.
(a) * * *
(4) * * *
(ii) * * *
(D) The travel outside of the United States by an applicant for
adjustment of status who is not under exclusion, deportation, or
removal proceeding and who is in lawful V status shall not be deemed an
abandonment of the application if, upon returning to this country, the
alien is admissible as a V nonimmigrant.
* * * * *
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
7. The authority citation for part 248 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
8-9. Section 248.1 is amended by adding a sentence at the end of
paragraph (a) and by revising paragraph (b) introductory text to read
as follows:
Sec. 248.1 Eligibility.
(a) * * * An alien defined by section 101(a)(15)(V) of the Act may
be accorded nonimmigrant status in the United States by following the
procedures set forth in Sec. 214.15(f) of this chapter.
(b) * * * Except in the case of an alien applying to obtain V
nonimmigrant status in the United States under Sec. 214.15(f) of this
chapter, a change of status may not be approved for an alien who failed
to maintain the previously accorded status or whose status expired
before the application or petition was filed, except that failure to
file before the period of previously authorized status expired may be
excused in the discretion of the Service, and without separate
application, where it is demonstrated at the time of filing that:
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
10. The authority citation for part 274a is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
11. Section 274a.12 is amended by:
a. Revising the last sentence in paragraph (a) introductory text;
b. Removing the ``or'' at the end of paragraph (a)(13);
c. Removing the period of the end of paragraph (a)(14) and adding
``; or'' in its place; and by
d. Adding paragraph (a)(15).
The revisions and additions read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
(a) Aliens authorized employment incident to status. * * * Any
alien who is within a class of aliens described in paragraphs (a)(3)
through (a)(8) or (a)(10) through (a)(15) of this section, and who
seeks to be employed in the United States, must apply to the Service
for a document evidencing such employment.
* * * * *
(15) Any alien in V nonimmigrant status as defined in section
101(a)(15)(V) of the Act and 8 CFR 214.15. An employment authorization
document issued under this paragraph will be valid for a period equal
to the alien's period of authorized admission as a V nonimmigrant and,
in any case, may not exceed 2 years;
* * * * *
PART 299--IMMIGRATION FORMS
12. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
13. Section 299.1 is amended in the table by adding Form ``I-539,
Supplement A'', in proper numerical sequence, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
[[Page 46705]]
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * *
I-539 Supplement A.................. 03-27-01 Filing Instructions for
V nonimmigrant status.
* * * * *
------------------------------------------------------------------------
14. Section 299.5 is amended in the table by adding Form ``I-539
Supplement A'' in proper numerical sequence, to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form No. INS form title OMB Control
No.
------------------------------------------------------------------------
* * * * *
I-539 Supplement A 1115-0237
Filing Instructions
for V nonimmigrant
status.
* * * * *
------------------------------------------------------------------------
Dated: August 28, 2001.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 01-22151 Filed 9-6-01; 8:45 am]
BILLING CODE 4410-10-P