Non Immigrant Visas

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.