State Department Regulations Regarding K & V Visas (4-16-01)

[Federal Register: April 16, 2001 (Volume 66, Number 73)]
[Rules and Regulations]
[Page 19390-19394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap01-6]

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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 3644]

Visas: Nonimmigrant Classes; Legal Immigration Family Equity Act
Nonimmigrants, V and K Classification

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule implements five new nonimmigrant visa categories
(V1, V2 and V3 and K3, K4) established pursuant to the Legal
Immigration Family Equity (LIFE) Act that was enacted on December 21,
2000. The new categories permit United States consular officers to
issue nonimmigrant visas to the spouse, child and, in some instances,
the child of the child of a lawful permanent resident alien (LPR) and
to the spouse of a United States citizen and the child(ren) of the
spouse. Issuance of nonimmigrant visas will permit these aliens to
apply for admission into the United States as nonimmigrants where they
may await the completion of the immigration process with their U.S.
citizen or LPR family member.

DATES: This interim rule is effective April 1, 2001. Written comments
must be received no later than June 1, 2001.

ADDRESSES: Written comments may be submitted, in duplicate, to H.
Edward Odom, Chief, Legislation and Regulations Division, Visa Office,
Room L603-C, SA-1, Department of State, Washington, DC 20520-0106.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and
Regulations Division, Visa Office, Room L603-C, SA-1, Department of
State, Washington, D.C. 20520-0106, (202) 663-1204; or e-mail:
odomhe@state.gov.

SUPPLEMENTARY INFORMATION:

Background

What is the Purpose of the New Visa Categories and Who Benefits From
Them?

    On December 21, 2000 the President signed into law the Legal
Immigration Family Equity (LIFE) Act, Title XI of H.R. 4942, Pub. L.
106-553. Sections 1102 and 1103 of the LIFE Act add to the existing
nonimmigrant categories of section 101(a)(15) of the Immigration and
Nationality Act (INA), 8 U.S.C. 1101(a)(15), two new categories, one
subdivided into three subcategories (V1, V2, V3) and the other into two
subcategories, (K3, K4). The underlying purpose of this legislation is
to reunite families that have been or could be subject to a long period
of separation during the process of immigrating to the United States.
Therefore, once admitted as a V or K nonimmigrant, the alien generally
will be permitted to remain in the United States with his or her family
until the visa petition is approved or denied. Then, if the petition is
approved, the alien may continue to remain until the application for
adjustment of status is approved or denied, or may depart to seek the
issuance of an immigrant visa at the appropriate consular office
abroad. In both the new V and K categories the spouses and children
affected are those for whom an immigrant visa or adjustment of status
are not available despite the petition having been filed. The lack of
availability of a visa or opportunity to adjust status in many cases
may be due to lengthy processing delays. In the cases of many spouses
and children of lawful permanent residents (LPRs) it may be due to the
fact that no visa number has yet become available to the alien because
of the annual numerical limitation placed on immigrant visas in the
second preference category.
    The new category ``V'' is intended for use by certain spouses and
unmarried children of LPRs who have filed second preference petitions
in their behalf pursuant to INA 203(a)(2)(A), and by the unmarried
children of those principal beneficiaries. A spouse who qualifies for V
status will be classified as V1. A petitioned-for child will be
classified as V2. A derivative child of either will be classified as
V3. Under the LIFE Act, no benefits accrue in the new categories until
three or more years after the date on which a second preference
petition was filed on behalf of the principal beneficiary.
    The LIFE Act also adds new subcategory K(ii) to the existing K
(fianc(e)) nonimmigrant category. The original K category has been
renumbered K(i) and modified to remove derivative children and place
them in a new K(iii) subcategory along with the children of an alien
classified under the new K(ii) subcategory. Nevertheless, a fiance(e)
of a U.S. citizen will continue to be designated K1 for visa purposes.
A derivative child of a K1 alien will still be designated K2. The new
K3 visa is intended for use by a spouse of a United States citizen for
whom a spousal immediate relative petition has been filed in the United
States. The spouse's child(ren) will be designated K4. Unlike the new
V3 category, neither existing legislation nor the LIFE Act provides for
visa issuance to the child of a child of the spouse or the petitioner.

V Visas

What are the Requirements to Obtain Classification as a V1, V2, or V3
Nonimmigrant?

    In order to obtain classification as a nonimmigrant under V1 or V2
the alien applicant must first establish that a second preference (F2A)
petition (I-130) as the spouse or child of an LPR had been filed in his
or her name on or before the date the LIFE Act was enacted, i.e.,
December 21, 2000. Further, the applicant must establish that either:
(1) The petition in the applicant's name has not been acted upon after
three years or more, or (2) if the petition has been approved, three
years or more have passed since the petition was filed and either no
visa number has become available because of the worldwide or per
country numerical limitation, or even though a number is available the
alien's application for

[[Page 19391]]

adjustment of status or visa application remains pending.
    In order to obtain nonimmigrant classification under V3, the
applicant must establish that he or she is the child of a principal
alien entitled to classification under V1 or V2. All applicants must
demonstrate that they are otherwise eligible for visa issuance under
all other applicable immigration laws, including those pertaining to
the exclusion of aliens other than INA 212(a)(6)(A), 212(a)(7) and
212(a)(9)(B) from which they are specifically exempted by the LIFE Act.

When is an Immigrant Visa Application Considered to Remain Pending for
the Purpose of Obtaining a V Visa?

    As stated, if a visa number is available to the alien, in order for
the alien to obtain a V visa the alien's immigrant visa application
must ``remain(s) pending''. However, the LIFE Act does not give any
indication as to what is meant by the phrase ``application for a visa
remains pending''. It could refer to the time period between the date
on which the alien's visa number becomes available and the date the
alien is given an appointment at an embassy or consulate in order to
apply for an immigrant visa. Or, it could refer to the time period
between the alien's actual application for a visa and the date on which
a decision is made on the application. Considerable delay at either
stage can cause hardship. In view of the specific wording of the LIFE
Act, however, Congress appears to have contemplated that the alien must
first actually apply for an immigrant visa before he or she may be
considered eligible for a V visa. The application must then remain
pending. The Department will thus interpret the phrase ``application
for a visa remains pending'' to mean that the alien has applied for an
immigrant visa pursuant to current regulations, i.e., has personally
appeared before a consular officer and verified by oath or affirmation
the statements contained on the Form OF-230 and in all supporting
documents, has previously submitted all forms and documents required in
advance of the appearance and paid the visa application processing fee,
but no decision has been made to issue a visa or refuse the
application. In most cases a visa will either be issued or refused at
the time of the alien's personal appearance at the visa interview. The
specific requirements for making an application are found at 22 CFR
40.1(l)(2). Refusal criteria are found at 22 CFR 42.81(a).

Must an Applicant for a V Visa Apply at a Particular Consular Post?

    Yes. Unless they obtain permission under existing Department
procedures to permit them to apply at some other post, applicants for V
visas must apply at the consular post designated as the processing post
in the underlying immigrant visa petition. Because in many ways the V
visa is a substitute for an immigrant visa, much of the information
relevant to an immigrant visa is also relevant to this nonimmigrant
visa. For example, such information may include local documents
establishing family relationships and in some cases testimony of
neighbors or other relatives that help to establish such relationships
and other bona fides of the applicants.

Does the Department Intend to Authorize Issuance of V Visas to Persons
Who as Children Were Qualified for V Visas, but Who Either ``Age-out''
by Reaching the Age of Twenty-one Years or Marry Prior to Receiving a V
Visa?

    No. The V visa classification clearly limits the class of
qualifying aliens to beneficiaries of the F2A immigrant visa
preference. The INA 101(b) definition of ``child'' includes only those
persons who are under the age of twenty-one years and unmarried. Thus,
while in the LIFE Act Congress clearly seeks to unify families waiting
for F2A visas, the law only authorizes the issuance of visas to
children who meet the INA definition of child. This rule reflects that
limitation.

What Will be the Validity Period of a V Visa?

    The Department is instructing consular officers to issue visas to
qualified applicants for the usual maximum full validity period of ten
years, subject to issuance for a shorter period due to the possibility
of age-out, or based upon security concerns or ineligibility waiver
limitations. In addition, the separate V visa supplemental application
form which every V visa applicant or his or her parent will be required
to sign will contain a notice apprising them that if a V2 or V3 child
enters into a marriage prior to obtaining adjustment of status the
marriage will render a ``child'' ineligible for adjustment of status as
a preference immigrant. It will further inform the applicant that such
marriage may cause termination of their legal status in the United
States.

Will Any Attempt be Made to Notify Potential V Visa Applicants of Their
Possible Eligibility for the V Visa?

    Yes. In view of the fact that the V visa provision is new and
somewhat unusual in terms of prevailing law and practice, the
Department has decided that it will send a special notice about the V
visa to all persons with F2A priority dates three years or older for
whom it has a record in its files at the National Visa Center (NVC).
INS routinely notifies NVC of the approval of immigrant visa petitions
for which the beneficiary has requested visa processing at a consular
post abroad. The Department maintains a database of all such petitions
in which it records information regarding the beneficiary's immigration
classification and priority date. Using that information NVC will
attempt to contact potential V visa applicants in order to provide them
with important information about the V visa and how it may be obtained.
In fact, as of March 15, 2001 the Department had already begun making
such notifications.

Will the Processing of V Visas Differ From Routine NIV Processing,
e.g., Processing for a Tourist or a Student Visa?

    Yes. In view of the fact that the aliens in the V categories are
essentially intending immigrants who will remain in the United States
indefinitely, the Department of State has determined that it is prudent
to impose on them requirements generally not routinely applied to other
nonimmigrants, other than fiance(e)s. Such requirements relate to the
presentation of evidence to establish that the intending immigrant
meets health and criminal background standards sufficient to protect
the American public.
    Under INA 212(a), in order to receive a visa all aliens must
establish their eligibility in these areas to the satisfaction of the
consular officer. Generally, however, among nonimmigrants, only the
fiance(e) visa applicants, who likewise are intending immigrants, have
been held to a high evidentiary standard in these areas. Thus, for the
purpose of meeting certain INA 212(a) requirements the applicants for
the new V visa categories will be held to the same standard applied to
fiance(e) visa applicants.

What Specific Documentation Will be Required in Order for V Visa
Applicants to Establish Their Eligibility in the Areas of Health and
Criminal Background?

    With regard to health, all applicants will be required to submit to
the medical examination applicable to

[[Page 19392]]

immigrant visa applicants, with the exception that applicants will not
be required to meet the vaccination requirements of INA
212(a)(1)(A)(ii). With regard to criminal background, all applicants
will be required to present at the time of visa application a criminal
record statement (police certificate) pursuant to the requirements of
22 CFR 42.65(c) and to have their name submitted to the Federal Bureau
of Investigation for an NCIC records check.

May an Alien Who Already has Been Granted V Status in the United States
by the INS Apply for a V Visa? If so, Will the Procedure to Obtain the
Visa be the Same as if the Alien had not Previously Been Granted V
Status?

    An alien who previously has been granted V status by INS in the
United States will need a V visa in order to return to the United
States in that status. Therefore, the alien will be eligible to apply
for a V visa when traveling abroad. Although the procedures for
obtaining the visa will remain the same as it is for aliens who have
not previously been granted V status, in most cases the alien will not
have to undergo a new medical check or police records check since INS
requires both as a part of the procedure for an alien to change status
to V and therefore the Department will accept the alien's V status
granted by INS as evidence that the alien has met both requirements.

K Visas

What are the Requirements to Obtain Classification as a K3 or K4
Nonimmigrant?

    In order to obtain classification under K3 the applicant must
demonstrate that his or her marriage to a U.S. citizen is valid, he or
she is the beneficiary of an immigrant visa petition (I-130) filed to
accord status to the applicant as the spouse of a citizen pursuant to
INA 201(b)(2)(A)(i), he or she is the beneficiary of an approved
nonimmigrant visa petition (currently form I-129F) in such form as the
INS determines is appropriate for the purpose of the issuance of a K3
visa, and that he or she wishes to enter the United States to await the
approval of the I-130 petition or the availability of an immigrant
visa. The nonimmigrant visa petition must have been filed in the United
States by the U.S. citizen spouse of the applicant. In order to obtain
classification under K4 the alien must establish that he or she is the
child of an alien entitled to K3 classification.

When is an Immigrant Visa Considered not to be Available for the
Purpose of Obtaining a K3 Visa?

    For the purposes of LIFE Act only, and in the absence of a
definition of the term ``availability of an immigrant visa'' in that
Act, the Department has given the phrase a narrow interpretation in
order to maximize the number of aliens who may benefit from the Act's
provisions. Therefore, an immigrant visa will be considered to be
available only when the actual approved I-130 petition has been
received at the consular post at which the visa application must be
filed. If the petition has been received at post, any K3 nonimmigrant
visa application filed by the alien spouse will be denied and he or she
will have to apply for an immigrant visa.

What Happens if the I-130 has Been Approved but not yet Received at the
Processing Post?

    Despite the fact that an approved immigrant visa petition may not
have been received at post, it may have been forwarded to NVC where
many approved immediate relative visa petitions are sent for pre-
processing. The Department recognizes that if the petition has actually
been approved many alien spouses may prefer to process their immigrant
visas rather than the K3 visa. Therefore, when the alien applies for
the nonimmigrant K3 visa he or she will be asked by the consular
officer whether they wish the consular officer to determine from the
NVC whether the approved immigrant visa petition has been received from
INS. Subject to the special circumstance noted in the next section, if
the applicant wishes, the petition will be forwarded to the processing
consular post so the applicant may file an immigrant visa application.

What Happens if an Intending K3 Applicant Opts to have the Immigrant
Visa Petition Forwarded Abroad From NVC in Order to Apply for an
Immigrant Visa, but the K3 Processing Post is not Authorized to Issue
Immigrant Visas?

    In that case immigrant visa petition will have to be forwarded to
and the applicant will have to file the immigrant visa application at
the consular post designated by the Deputy Assistant Secretary of State
for Visa Services to process immigrant visa applications for nationals
of the country in which the K3 processing post is located.

Must an Applicant for a K3 or K4 Visa Apply at a Particular Consular
Post?

    Yes. If the marriage of the alien to the U.S. citizen occurred
abroad, the LIFE Act requires that the visa be issued in the country in
which the marriage took place. In those countries in which there is no
consular post, the Department has determined that the alien must apply
at the consular post designated by the Deputy Assistant Secretary of
State for Visa Services to accept immigrant visa applications from
nationals of that country. For spouses married in the United States,
since the K3 and K4 visas are a subcategory of the K (fiance(e)) visa,
the rules regarding the place of application applicable to other K
visas will apply, i.e., in general, applications must be filed in the
country of residence of the alien spouse.

Will the Department Use the Same Standards for Issuing Full Validity K3
and K4 Visas and for the Notice to Children of Marriageable Age as
Established for the V Visa?

    Yes. The Department is authorizing the issuance of ten-year
multiple entry visas to K3 and K4 visa recipients, except in those
instances in which the limitations of age (aging-out), security
concerns or ineligibility waiver limitations indicate a shorter period
of validity is necessary. A special visa application supplement for K3
and K4 applicants will also contain a notice informing them of the
potential consequences of marriage by a child recipient of a K4 visa
prior to admission to the United States or adjustment of status.

Will the Documentation Required To Obtain K3 and K4 Visas Also Differ
From Routine NIV Processing, e.g., Processing for a Tourist or a
Student?

    Yes. For the reasons stated above with regard to V visa applicants,
K3 and K4 visa applicants will be processed via the modified immigrant
visa procedure applicable to fiance(e)s. In general, this procedure
requires a medical examination and law enforcement background check of
the alien.

May an Alien Who Already Has Had Filed in his or her Name an
Application for Adjustment of Status, but Who Has Not Previously
Applied for a K Visa Obtain a K Visa?

    Yes. However, they will be subject to all of the procedures
applicable to other K3 applicants, including medical examination and a
police record check.

Interim Rule

How Is the Department of State Amending Its Regulations?

    The Department is adding new Sec. 41.86 to part 41 of Title 22.
This new section will permit consular officers to issue a new category
of nonimmigrant visa, the V visa, to certain spouses and children

[[Page 19393]]

of lawful permanent resident aliens. It is also amending Sec. 41.81 of
part 41 of Title 22 by designating the language of the existing section
as subsection (a) and adding two new subsections, (b) and (c), that
will permit consular officers to issue nonimmigrant visas in new
categories K3 and K4 for the spouse of a U.S. citizen and the spouse's
child(ren), respectively.

Administrative Procedure Act

    The Department's implementation of this regulation as an interim
rule, with a provision for public comments, is based upon the ``good
cause'' exceptions found at 5 U.S.C. 553(b) and (d)(3). The Department
decided that, since the LIFE Act as it pertains to the new nonimmigrant
visa categories became effective upon enactment, and since it provides
a substantial benefit to many citizens and lawful permanent residents
by permitting their speedy reunification with their spouses and
children, there is not enough time nor sufficient reason to delay its
implementation by issuing a proposed rule with request for comments.
Publication of this regulation as an interim rule will expedite
implementation of Title XI of Public Law 106-553 that is already in
effect and allow eligible aliens to apply for and participate in this
program as soon as possible in light of its humanitarian intent.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by
approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities. The act
involves entirely individual citizens and permanent residents and their
family members and will have no significant economic impact on small
entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    The Department of State does not consider this rule to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and the Office of Management and
Budget has waived its review process under section 6(a)(3)(A).

Executive Order 13132

    This regulation will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

Paperwork Reduction Act

    This rule does not impose any new reporting or record keeping
requirements. The information collection requirement (Form OF-156)
contained by reference in this rule was previously approved for use by
the Office of Management and Budget (OMB) under the Paperwork Reduction
Act.

List of Subjects in 22 CFR Part 41

    Aliens, Applications, Nonimmigrants, Passports and visas.

    Accordingly, amend 22 CFR part 41 as follows:

PART 41--[AMENDED]

    1. The authority citation for Part 41 continues to read as follows:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681 et
seq.

    2. Add a new Sec. 41.86 to read as follows:

Sec. 41.86  Certain spouses and children of lawful permanent resident
aliens.

    (a) Definition of ``remains pending''. For the purposes of this
section, a visa application ``remains pending'' if the applicant has
applied for an immigrant visa in accordance with the definition in part
40, Sec. 40.1(l)(2) and the visa has neither been issued, nor refused
for any reason under applicable law and regulation.
    (b) Entitlement to classification. A consular officer may classify
an alien as a nonimmigrant under INA 101(a)(15)(V) if:
    (1) The consular officer has received notification from the
Department of State or the Department of Justice that a petition to
accord status to the alien as a spouse or child pursuant to INA
203(a)(2)(A) was filed on or before December 21, 2000; or
    (2) The alien is eligible to derive benefits pursuant to INA 203(d)
as a child of an alien described in paragraph (b)(1) of this section
and such alien has qualified for V classification; and
    (3) It has been three years or more since the filing date of the
petition described in paragraph (b)(1) of this section and applicable
to paragraph (b)(2) of this section and either:
    (i) The petition has not been approved; or
    (ii) If it has been approved, either no immigrant visa number is
immediately available or the alien's application for adjustment of
status or the alien's application for a visa remains pending.
    (c) Eligibility as an immigrant required. The consular officer,
insofar as practicable, must determine the eligibility of an alien
described in paragraph (b) of this section to receive a nonimmigrant
visa under INA 101(a)(15)(V), other than an alien who previously has
been granted V status in the United States by INS, as if the alien were
an applicant for an immigrant visa, except that the alien is exempt
from the vaccination requirement of INA 212(a)(1), the labor
certification requirement of INA 212(a)(5) and the unlawful presence
ineligibility of INA 212(a)(9)(B).
    (d) Place of application. Notwithstanding the requirements of
Sec. 41.101, in determining the place of application for an alien
seeking a visa pursuant to INA 101(a)(15)(V) the requirements of part
42, Secs. 42.61(a) and (b)(1) of this chapter will apply.

    3. Revise Sec. 41.81 to read as follows:

Sec. 41.81  Fiance(e) or spouse of a U.S. citizen and derivative
children.

    (a) Fiance(e). An alien is classifiable as a nonimmigrant fiance(e)
under INA 101(a)(15)(K)(i) if:
    (1) The consular officer is satisfied that the alien is qualified
under that provision and the consular officer has received a petition
filed by a U.S. citizen to confer nonimmigrant status as a fiance(e) on
the alien, which has been approved by the INS under INA 214(d),

[[Page 19394]]

or a notification of such approval from that Service;
    (2) The consular officer has received from the alien the alien's
sworn statement of ability and intent to conclude a valid marriage with
the petitioner within 90 days of arrival in the United States; and
    (3) The alien has met all other qualifications in order to receive
a nonimmigrant visa, including the requirements of paragraph (d) of
this section.
    (b) Spouse. An alien is classifiable as a nonimmigrant spouse under
INA 101(a)(15)(K)(ii) when all of the following requirements are met:
    (1) The consular officer is satisfied that the alien is qualified
under that provision and the consular officer has received a petition
approved by the INS pursuant to INA 214(p)(1), that was filed by the
U.S. citizen spouse of the alien in the United States.
    (2) If the alien's marriage to the U.S. citizen was contracted
outside of the United States, the alien is applying in the country in
which the marriage took place, or if there is no consular post in that
country, then at a consular post designated by the Deputy Assistant
Secretary of State for Visa Services to accept immigrant visa
applications for nationals of that country.
    (3) If the marriage was contracted in the United States, the alien
is applying in a country as provided in part 42, Sec. 42.61 of this
chapter.
    (4) The alien otherwise has met all applicable requirements in
order to receive a nonimmigrant visa, including the requirements of
paragraph (d) of this section.
    (c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii)
if:
    (1) The consular officer is satisfied that the alien is the child
of an alien classified under INA 101(a)(15)(K)(i) or (ii) and is
accompanying or following to join the principal alien; and
    (2) The alien otherwise has met all other applicable requirements
in order to receive a nonimmigrant visa, including the requirements of
paragraph (d) of this section.
    (d) Eligibility as an immigrant required. The consular officer,
insofar as is practicable, must determine the eligibility of an alien
to receive a nonimmigrant visa under paragraphs (a), (b) or (c) of this
section as if the alien were an applicant for an immigrant visa, except
that the alien must be exempt from the vaccination requirement of INA
212(a)(1) and the labor certification requirement of INA 212(a)(5).

    Dated: March 28, 2001.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 01-9367 Filed 4-13-01; 8:45 am]
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