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New K and V Visas
February 5, 2001
As noted
in my previous article the President signed into law a new law in
December, called the “Legal Immigration and Family Equity
(LIFE) Act.” Most of
you are already well aware of this law, and of many of its major
benefits – such as the “new” 245(i) covered in my previous
article.
However, there are some lesser
known aspects of this law, that may give a big benefit to many
recent immigrants seeking to reunify
their families. These
aspects are the expanded “K” visa benefits, and the new “V”
visa.
Q.
I am a permanent resident, and got
married soon after I got my green card.
Unfortunately, my wife remains in her home country of
Ukraine, and cannot get a tourist visa to come visit me.
Although I filed a petition for her three years ago, which
was approved, we are still waiting for her “priority date” to
become current. Can the
new law help me?
A.
Yes.
As you know, because your wife is the beneficiary of the
petition she is an “intending immigrant.”
She therefore will not be granted a tourist visa by a
consulate. However, the
new law creates a new “V” visa, which would allow her to enter
the U.S. and obtain work authorization here while waiting for her
priority date to become current.
In
short, the new “V” Visa, allows the spouses and minor children
of lawful permanent residents who have been waiting more than three
years for a green card, to enter the United States and be granted
work authorization. In order to qualify the spouse or child must
meet the following criteria:
First,
a green card petition must have been filed on or before enactment of
the law – December 21, 2000.
Second,
the beneficiary have been waiting at least 3 years. The petition
must either have been pending with the INS for three years or more
or, if the petition has been approved, the spouse or minor child
must have been waiting at least three years for their “turn” in
the green card line.
Third,
the law provides that periods in the United States in unauthorized
status will not prevent someone from obtaining a V visa.
The law also would allow individuals already in the United
States to apply to “adjust status” to the new V category, even
if they are in the United States unlawfully. With the reinstatement
of Section 245(i), V visa holders will be eligible to adjust their
status to legal permanent resident under that section.
Q.
I
was naturalized in October, and in November filed a petition on
behalf of my new husband who lives in Russia.
However, I heard that the INS can take up to two years to
process the petition. Will
the new law give me any way to shorten the wait?
A.
Yes.
The new law also covers your situation.
In
order to address the severe backlogs on the processing of petitions
for family members, the LIFE Act helps the spouses of United States
citizens who are outside of the United States and waiting for the
approval of an immigrant petition.
Any minor children who are seeking to accompany the spouse
are also provided protection.
The
bill expands the use of the “K” visa, which currently allows
fiancées of U.S. citizens to enter the United States for the
purposes of getting married, to be used by spouses of U.S. citizens
who are already married and are waiting outside of the United States
for the approval of their immigrant visa petitions.
Any minor children who are accompanying the spouse can be
included in the petition. In order to qualify the spouse and minor
children must meet the following criteria:
First,
an immigrant visa petition must have been previously filed. The law
requires that the U.S. citizen file an immigrant petition before a
visa can be issued to the spouse abroad. The K visa will allow the
spouse abroad to enter the U.S. and await the approval of the
petition.
Second,
the recipient of the K visa must be outside of the United States.
The law only authorizes the visa to be issued by a consular officer
outside of the United States. There is no provision to “adjust
status” for someone already in the United States in an unlawful
status.
Third,
the K visa petition must be filed in the United States. The petition
for the K visa must be filed in the United States by the U.S.
citizen spouse.
If marriage occurs outside of the U.S., the K visa must be issued by
the consulate where the marriage occurred. Where the marriage to the
U.S. citizen occurred outside of the United States, the statute says
that, at the time of admission, the alien must have “a valid
non-immigrant visa issued by a consular officer in the foreign state
in which the marriage was concluded.”
The
bill provides that this new K status is available both to
individuals with currently pending green card petitions and future
applicants.
FOR MORE INFORMATION:
Contact John Byrley at
tel: 410-719-1501.
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