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V Visas for Spouses and Minor Children of Legal Permanent Residents

Written by Henry J. Chang

General

The recently enacted Legal Immigration and Family Equity Act Act (the "LIFE Act") provides a remedy for the spouses and minor children of legal permanent residents. Because these individuals are intending immigrants, there is no other way for them to legally enter the United States, even for brief visits. The new INA §101(a)(15)(V) grants some family members a legal status and work authorization in the United States. In order to qualify, the spouse or child must meet the following criteria:

  1. The sponsoring permanent resident must already have filed a petition for permanent residence on behalf of the spouse or minor child with the Immigration and Naturalization Service (the "INS") as of December 21, 2000, the date that the LIFE Act became law.

  2. The petition must either have been pending with the INS for three years or more; or

  3. If the petition has been approved, the spouse or minor child must have been waiting at least three years since the filing date, and

    1. An immigrant visa must not be immediately available to the alien because of the visa backlogs in the 2a family-based preference category; or

    2. The alien's application for an immigrant visa, or the alien's application for adjustment of status under section 245, pursuant to the approval of such petition, remains pending.

As V visa is an nonimmigrant classification and is not intended to be the final legal status of the applicant in the United States, visa issuance to dependents (V-2) may precede issuance to the principal alien (V-1).

Inapplicability of the Three- and Ten-Year Bars

The LIFE Act provides that periods spent in unlawful presence, that may result in a three- or ten-year bar under INA §212(a)(9)(B), shall not preclude the granting of V status. However, such bars will still prevent such persons from adjusting status to lawful permanent resident (for the applicable 3-year or 10-year period) unless they obtain a waiver.

Adjustment of Status by V Aliens

An alien physically present in the United States may adjust their status to that of a nonimmigrant under INA §101(a)(15)(V), if the alien:

  1. Applies for such adjustment;

  2. Satisfies the requirements of such section; and

  3. Is eligible to be admitted to the United States (in determining such admissibility, the grounds for inadmissibility specified in INA §212(a)(6)(A), INA §212(a)(7), and INA §212(a)(9)(B) shall not apply.)

V Visa Holders Entitled to Employment Authorization

Persons who have been issued a "V" visa at a consulate and admitted to the United States may apply for authorization to work in the United States. They may not engage in employment until their receive an employment authorization document.


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