State Department Cable on V and K Visa Processing (January 30, 2001)

TELEGRAM                                         January 30, 2001


Origin:   VO



Captions: VISAS

Subject:  Processing V and K3 Visas: The View So Far

Ref:      State 00-242292

1. Summary. On December 21, 2000, The President signed
into law a major immigration legislative package called the
Legal Immigration and Family Equity (LIFE) Act and
amendments. The LIFE Act creates new categories of NIVs to
benefit certain second preference beneficiaries (V visas),
as well as spouses of U.S. citizens (KII visas, to be
issued as K3 visas). Pending further discussions with
Congress and INS, the Department intends to process
applicants for these new NIVs in a manner similar to that
currently followed for K1 fiance visa applicants. This
cable is intended to inform posts of the Department's
current thinking on the implementation of the LIFE Act
provisions. No specific action is required by conoffs at
this time. No posts may begin issuing these new NIVs until
instructed to do so by the Department by septel. However,
posts should begin planning how to incorporate V and Kii
visas into their workflow in accordance with the following
general guidelines. End summary.

V Visas

2. To be eligible for the new V visa, a petition for the
applicant must have been filed with INS for second
preference status as the spouse of a legal permanent
resident under Section 203(a)(2)(A) on or before the
enactment of the LIFE Act on December 22, 2000. In
addition, the applicant must demonstrate that since the
filing of the petition, he/she has been waiting at least
three years for 1) action by INS on the submitted petition,
or 2) if the petition has been approved by INS,
availability of a visa number under the worldwide numerical
limitations, or 3) if a number is available, the
application for adjustment of status or an immigrant visa
remains pending.

3. For purposes of V visa processing, a visa application
remains pending if the consular officer processing the visa
does not offer the applicant an appointment date to make an
application within 60 days of determining that the
beneficiary has the necessary documents to begin the visa
application process. This determination is usually made
when the applicant returns the Packet three forms to signal
that all required documents are in his/her possession.
However, the manner of making this determination may vary
among posts as some posts with high incidences of fraud or
misreporting by applicants of documentary readiness may
take extra steps to insure that the applicant does in fact
have in their possession all the required documents.

4. An unmarried child of a V1 applicant may be issued a
derivative V2 visa provided he/she is able to demonstrate
that he/she is the child of a principal alien entitled to
V1 classification. As V is an NIV classification and is
not intended to be the final legal status of the applicant
in the United States, issuance to V2 derivatives may
precede issuance to the V1 principal applicant, in the same
manner that IR2 status is not dependent on issuance to the
IR1 beneficiary. V2 status is thus not relegated to
accompanying or following to join the principal applicant.

5. V visa status is intended to permit long-separated
families to reunite in the United States and together await
availability of a visa number. Because V status is
available only to those whose petitions were filed on or
before December 21, 2000, this category effectively sunsets
in three years or when the pool of eligible applicants
eventually dissipates with V issuances over time. Unless
extended by Congress, it is not a permanent addition to the
list of visa classifications.

6. At this time, the intent is to process an applicant as
an immigrant visa case if the priority date is current.
Those with current priority dates will not rpt not be able
to elect to apply instead for a V visa. The Department
will make this clear to the public in an appropriate

K3 Visas

7. The LIFE Act expands the criteria for "K" visas beyond
status for fiances of U.S. citizens. Under LIFE, a new K3
status is created for spouses of U.S. citizens. According
to a joint memorandum from the Senate Subcommittee on
Immigration, the K3 visa is not intended to be a
prerequisite for the admission of U.S.citizens' spouses.
It is meant to be a speedy mechanism for the spouse of a
U.S. citizen to join that U.S. citizen spouse and obtain
the immigrant visa/status in the United States, rather than
wait for long periods of time outside the United States.

8. The LIFE Act stipulates that K3 visas may be issued to
those who are able to demonstrate that they have concluded
a valid marriage with a U.S. citizen and who are the
beneficiaries of an I-130 petition filed with INS. The K3
visa allows these spouses to enter the United States to
await INS approval of the I-130 petition.

9. K3 issuance may further depend on INS approval of some
type of petition for non-immigrant status filed in the
United States by the U.S. citizen petitioner, the exact
nature of which has not yet been determined by INS.

10. For those couples married outside the United States,
the non-immigrant K3 visa must be "issued by a consular
officer in the foreign state in which the marriage was
concluded," according to the LIFE Act. This means that K3
visa processing must be available in all countries. For
those regions where IV processing for several countries is
centralized in one of the countries, it will be necessary
to make an exception for K3 applicants and process them
locally. In these circumstances, some NIV sections which
do not normally process IV cases will be required to add K3
processing to their workload. For those countries where IV
processing is centralized in one of the posts within the
country, it will be left to the posts to determine if all
posts will process K3 applicants or whether the K3
applicants will be centralized in the designated IV-issuing
post in the country.

11. An unmarried child of a K3 applicant only needs to
demonstrate that he/she is the child of an alien entitled
to K3 status in order to obtain a K4 visa. No petition
filed on the child's behalf is required.

12. Unlike the V visa classification, the K3 visa is a
permanent addition to the list of NIV categories. Under
the LIFE Act, an alien spouse of a U.S. citizen who is the
beneficiary of a classification petition filed under
section 204 of the INA before, on, or after the date of
enactment of the LIFE Act is eligible for K3

Documentary Requirements

13. Applicants for both V and K3 visas will be processed
with similar documentary requirements as those for K1
fiance visa applications. They will need to undergo the
standard IV medical examination by a panel physician. An
NCIC namecheck will be done by NVC for each applicant. The
applicants will need to present local police certificates.
At the time of interview, applicants will be expected to
present evidence of family relationship to the petitioner.

14. In addition, applicants are subject to Section
212(a)(4) and must demonstrate to the satisfaction of the
consular officer an ability to overcome public charge
considerations. Evidence might be a letter from the
petitioner's employer, a job offer for the applicant, or
evidence that the applicant will be self-supporting in the
United States, or anything else. The I-864 cannot be
required. The I-134 affidavit of support may be required
when the consular officer deems it useful.

NVC Sends Information on V Visa Availability to ELIGIBLE

15. Because the NVC stores files for F2A cases that are
not yet current for processing, NVC can confirm an
applicant's eligibility for V processing for those
applicants whose files are at NVC. In mid February, NVC
will begin sending an information/instruction sheet to
those applicants with INS-approved F2A petitions in storage
at NVC. The goal of this mailing is to provide the means
for applicants to identify themselves to posts as eligible
for V visa application. The letter will briefly outline
the documentary requirements for the V visa and instruct
the applicant to contact the post. Applicants will be
directed to posts' websites for telephone numbers and
addresses. This will be the only mailing to V applicants
from NVC; no Packet 3s or 4s will be sent by NVC.

16. It will be left to posts' discretion to determine how
to proceed with scheduling and processing applicants,
whether by the usual Packet system, the so-called Packet
3.5, or through some other means created by post to meet
the needs of these applicants and balance the equities
among post's clients.

17. In contrast to the usual IV procedures, NVC will send
neither an electronic file nor the paper file to posts.
All files will remain at NVC. Successful V applicants will
enter the United States and remain in non-immigrant status
until an immigrant number is available, however long this
might take. They will then be eligible to adjust status
with INS in the United States, and at that time, INS may
need to retrieve the file from NVC. As V classification is
not meant to be the final legal status in the United
States, it is preferable to leave the files at NVC until
the applicant contacts INS to adjust status rather than
ship files to post for V processing only to have posts
return them intact after issuance.

Confirming Eligibility for V and K3 Status

18. For V visa processing, CA/EX/CSD is working on a
method using CLASS to verify that a non-current F2A
petition case file is at NVC. Names of eligible dependents
from the original I-130 petition will be included. An
independent database for use by offsite scheduling
contractors is also under consideration.

19. The list of verified applicants will include only
those applicants for whom INS has approved and forwarded
the petition to NVC. These are the only cases for which
the Department can provide verification that a petition was
filed with INS. VO is working with INS to come up with
procedures for posts to verify petition filings for any
case not yet approved by INS. There is no estimate of how
many cases this might entail.

20. For K3 visa applicants, INS holds the original I-130
petitions. The Department and INS are trying to work out
an arrangement for posts to verify these petition filings
and meet the intent of Congress. Until such an arrangement
is worked out, posts cannot begin processing K3 cases.

Place of Application

21. V visas will be processed only at current IV-issuing
posts. Where IV processing is currently centralized, those
IV-issuing posts will be responsible for all V visa matters
for all countries for which they process IVs. V applicants
must apply at the consular post designated as the
processing post in the underlying I-130 petition. Posts
will process only those V applicants who are resident in
their consular districts or for IV centralized regions, for
those resident in their region. For example, non-resident
TCN applicants will not be able to apply for V visas at the
border posts.

22. According to the language in the LIFE Act, K3
applicants will apply at the visa-issuing post in the
country where they were married.

Aging Out Cases

23. F2A applicants who aged out prior to the enactment of
the LIFE Act are not eligible for V issuance. The V visa
provision of the LIFE Act refers only to those who are
beneficiaries of petitions to accord status under Section
203(a)(2)(A) of the INA.  Eligibility for V status requires
that the petition be filed on or before December 21, 2000,
but also that three years have elapsed since the filing of
the petition and that an immigrant visa is not immediately
available because of a waiting list of applicants for visas
under INA Section 203(a)(2)(A).

24. Applicants whose petitions were filed before December
21, 2000 but who age out while waiting for the mandatory
three years waiting period since petition filing date, do
not qualify for V visa issuance. Their cases will
automatically revert to F2B status under INA Section

25. All applicants for both V2 and K4 visas who are
children will be required to sign a form apprising them
that entering into a marriage prior to admission into the
United States or prior to obtaining adjustment of status
will render them ineligible for adjustment as an F2A
immigrant visa applicant.

Validity and Fee for V and K3 Visas

26. There is no additional processing fee for V or K3 visa
application or issuance. Both will pay only the standard
$45.00 MRV fee. There are no separate reciprocity fees
involved with these visas.

27. Unless constrained by security clearance requirements
or other waivers which are valid for a year or less, the
validity of V1 and K3 visas will be ten years for all
applicants from all countries, multiple entries. However,
unmarried children of V1 and K3 applicants may receive
multiple entry visas valid only until they reach the age of
21 years. V visas should be annotated with the priority
date to aid INS inspectors at POE in determining in the
future whether V status continues to be appropriate.

Processing Priorities

28. The underlying purpose of the LIFE Act is to reunite
families that have been or could be subject to long
separation during the process of immigrating to the United
States. Those who might benefit from the LIFE Act are

those spouses and children for whom an immigrant visa is
not immediately available, whether due to processing delays
or lack of availability of a visa number, despite the
petition having been filed.

29. Following this, when posts eventually begin handling
this new caseload, it will be important that posts process
these cases as quickly as possible without further adding
to the delays that prompted Congress to legislate the
provisions of the LIFE Act in the first place. Posts
should first handle IV cases that are current for
processing and for which visa numbers are available. The
second priority should be V1 and K3 applicants and their
children. The Department realizes that this will probably
constrain non-immigrant visa processing which will be
relegated to a third place priority. CA has informally
advised congressional staffers that other NIV applicants
may be disadvantaged as poAts accommodate V and K3
applicants because there is no surge capacity to enhance
visa operations overseas in the short term.

30. Posts can not rpt not issue a V or K3 visa until
authorized to do so by the Department in septel.
Department is presently asking conoffs to begin planning
for V and K3 visa issuance along the lines noted above. We
will provide further details on datashare, INS plans, and
other issues as they become available.



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