V CATEGORY FOR SPOUSES/CHILDREN OF LPRs

 By Roman P. Mosqueda, Esq.

            Spouses, children of lawful permanent residents, and dependent children of their spouses and of their children, who are waiting for visa availability (2-A Family Preference Category) may qualify for V non-immigrant status or visa.

            And V status/visa applicants are exempted from inadmissibility or ineligibility due to unlawful presence or overstaying in the United States.

            Indeed, the three-year (for overstaying for more than six months) and the ten-year (for overstaying for more than one year) bars do not prevent overstaying applicants in the United States to change to V status,  or eligible spouses or children abroad, who had previously overstayed for more than six (6) months in the United States, to obtain V visa.

            Moreover, V status/visa applicants are exempted from labor certification and vaccination, but require medical examination by a civil surgeon who should complete Form I-693, Medical Examination of Aliens Seeking Adjustment of Status. 

Applicants Eligible For V Visa/Status: 

            The following aliens are eligible for V visa or status:

1.      spouses (V-1) of lawful permanent residents;

2.      unmarried children below 21 years of age (V-2) of lawful permanent residents; and

3.      dependent, unmarried children below 21 years of age of the spouses of and of children of  (V-3), lawful permanent residents, or derivative children of V-1 and V-2 nonimmigrants. 

But only if the lawful permanent resident spouses or parents had:

1.      filed the Petition for Alien Relative (Form I-130) for their spouses or children prior to December 21, 2000; and

2.      the Form I-130 relative petition has been pending for three (3) or more years; or

3.      the Form I-130 petition had been approved three (3) or more years ago, but a visa number is still not immediately available; or

4.      a visa number is currently available, but the application for immigrant visa with the Consular Post abroad, or the application for adjustment of status with the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security, remains pending:

(a)   because the Consular Post of the Department of State has not rendered an unappealable decision on the immigrant visa application; or

(b)   because the USCIS has not adjudicated the application for adjustment to lawful permanent resident (Form I-485) after proper filing.

            Unfortunately, children of lawful permanent residents who turn 21 years old during the three (3) year period lose their eligibility for V visa/status.

            Dependent, minor and unmarried children of spouses (V-3) of lawful permanent residents, with different parents, must show that they are children of principals entitled to V visa/status by virtue of marriages to lawful permanent residents. 

Employment and Travel Benefits of V Status Holders: 

            V status holders are entitled to employment authorization (through Form I-765) during their authorized admission or status, on a yearly basis.

            Eligible aliens already in the United States who are applying for V status may file for employment authorization (Form I-765) at the same time the change of status application (Form I-539 and Supplement A to Form I-539) is filed.

            And eligible aliens who obtain V nonimmigrant visas from consular offices abroad may be admitted to the United States in V nonimmigrant status, provided they possess valid, unexpired V visas and remain eligible for V status.

            But aliens granted V status in the United States by the USCIS will need to obtain V visas from the consular offices abroad in order to be admitted to the United States as V nonimmigrants, after  traveling abroad.

            Such aliens in V status with pending adjustment of status applications (Form I-485) do not need to obtain advance parole prior to traveling abroad to protect their pending adjustment applications from being considered abandoned, when they depart the United States. 

Procedure For Obtaining V Visa/Status: 

            If the eligible aliens are abroad, the V visa applications (Department of State Forms DS-156, DS-3052, DS-157) are filed at the Consular Post at their home country, which requires medical examination, and crime checks, but exempts submission of the legally binding Affidavit of Support (Form I-864), but may require the non-binding Affidavit of Support (Form I-134).

            If the eligible aliens are in the United States, even if not maintaining nonimmigrant status, the change to V status application (Form I-539 and Supplement A thereto, $140 current filing fee plus $50 fingerprinting fee) is filed with the U.S. Citizenship and Immigration Services, P.O. Box 7216, Chicago, IL 60680-7216.

            As stated earlier, a medical examination (but not vaccination) and fingerprinting are required.  And as evidence of eligibility, copy of the Notice of Action (Form I-797, Receipt or Approval of the I-130 petition), marriage certificate, or birth certificate are required to be filed as additional initial evidence.

            The V status may be initially granted for two (2) years, with extensions of two (2) years, unless the applicant has a current priority date, and the adjustment of status application or immigrant visa application has not been filed.  In which case, only a six (6) month extension would be granted. 

Termination of V Status: 

            The period of authorized admission or status as V nonimmigrant terminates thirty (30) days after any of the following is denied:

1.      the qualifying Form I-130 petition;

2.      the alien’s application for an immigrant visa pursuant to the approval of the Form I-130 petition; or

3.      the alien’s application for adjustment of status (Form I-485) pursuant to the approval of the Form I-130 petition. 

            And in the case of a derivative child (V-3), the period of admission is terminated when the Form I-130 or Form I-485 filed by the principal alien (V-1 or V-2) is denied.

            Withdrawal or revocation of an approved Form I-130 petition is equivalent to a denial.  And divorce with the lawful permanent resident results in loss of V-1 status of the alien spouse.  And an alien child loses V-2 or V-3 status upon turning 21 years of age, or upon marriage.

            Upon termination of the V status, the alien becomes removable because unlawful presence begins to accrue.