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New and modified U.S. visas

By John Manley
May 24, 2002
The Iranian

V VISAS

Immigration and Naturalization Service has created a new visa and modified an existing one in the recent past. On December 21, 2000, then-President Clinton signed the Legal Immigration Family Equity Act (LIFE). One provision of the act provides for a new category of Non-immigrant visa, the "V" visa.

Permanent residents may file relative petitions for their spouses or unmarried children under twenty-one. Such beneficiaries fall into the Second Preference ("F2A") immigrant visa category. After the filing of the petition, F2A beneficiaries must wait many years before they may apply for the green card. The V visa reduces separation hardship for families who are waiting under the F2A category.

Beneficiaries of F2A petitions filed three or more years ago and still pending or approved but not current can qualify for a V visa. The beneficiary can apply for the visa either at the home consulate or within the United States. The V visa lasts for ten years and beneficiaries can apply for work authorization in the United States. V visa holders already in the U.S. should check with their immigration attorneys before traveling outside the country on their V visas. [Sources: US Immigration and Naturalization]

The V visa will allow spouses/children of legal permanent residents to travel to and from the U.S. to visit, reside and seek employment authorization while they wait for their priority date to become current to complete their immigration process. The spouse of a legal permanent resident will receive a V1 visa. The child of a legal permanent resident will receive a V2 visa. A child of a V2 will receive a V3 visa. For the V2 and V3 categories, the visa will last only for multiple entries until the visa holder reaches his twenty-first birthday.

K VISAS

The government has modified the " K" visa. U. S. citizens can continue petitioning for their fiancées with the K visa. The major change to the visa allows U.S. citizens to petition for their spouses using the K visa.

The change reunites families that have been or could be subject to a long period of separation during the process of immigrating to the United States.

In the past, U.S. citizens with spouses who were outside the U.S. would face waiting times of up to or over a year for the spouse to receive a green card interview at the consulate. Holders of the new K visas can wait in the US for the completion of the process

Both the spouse of a United States citizen and by the spouse's children can take advantage of the new K visa. The nonimmigrant visa for the spouse will hold a K3 visa and the spouse«s children will hold the K-4.

To qualify for the new K nonimmigrant visa, the applicant for the visa must prove:

1. His/her marriage to a U.S. citizen is valid, and

2. He/she is the beneficiary of a relative petition (Form I-130) already filed with the US Immigration and Naturalization Service (INS) as the spouse of a U.S. citizen, but which petition has not yet been approved by INS, AND

3. He/she is also the beneficiary of a special petition filed with and approved by INS in the United States, AND

4. He/she wishes to enter the United States to await the approval of the I-130 petition [an Alien Relative Petition] by INS or the availability of an immigrant visa. Applicant must meet all four qualifications before overseas processing of the request for the K visa can begin.

If an I-130 petition for the spouse is already at the overseas post, the consulate will process an immigrant visa instead of the nonimmigrant K visa. If an immigrant visa based upon the I-130 petition for the spouse has already been denied, then neither the spouse nor the spouse«s children may qualify for a K3 or K4 visa. [Sources: US Immigration and Naturalization]

The K-3 reduces separation times and increases options available to U.S citizen petitioners. For example, before the K-3 visa, U.S. citizens with spouses abroad would occasionally encounter difficulties because of the new Affidavit of Support (Form I-864). The I-864 requires the petitioner to have resided in the U.S. for the previous six months.

The government adjudicates the I-864 at the initial green card interview in the consulate. U.S. petitioners would typically wait for the green card interview outside the country with their spouses. These petitioners would encounter problems with the residence requirement. These citizens can now bring their spouses into the country with relative ease on a K-3 petition.

The K-3 visa is valid for two years and the holder of this visa can use it for multiple entries into the United States. Once in the U.S. on a K-3, the applicant must continue to pursue the immigrant visa once the government approves the I-130. The holder of the K-3 would have the option of proceeding with the application for permanent residence either in the United States or at the home consulate.

If the marriage of the K-3 applicant to the U.S. citizen petitioner took place abroad, the government will adjudicate the visa in the country in which the marriage took place. If the parties marry in the U.S., the K-3 interview will take place in the country of residence of the K applicant. Iranians will have a choice of Ankara, Turkey, or Abu Dhabi, U.A.E as a consulate.

The K-4 visa is only valid for multiple entries for two years or until the child turns twenty-one. If the K-4 turns twenty-one or marries, he or she is not longer eligible for the K-4.

Author

John Manley practices immigration law in Los Angeles, California.

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