K and V Visas

February 5, 2001

As noted in my previous article the President signed into law a new law in December, called the "Legal Immigration and Family Equity (LIFE) Act." Most of you are already well aware of this law, and of many of its major benefits – such as the "new" 245(i) covered in my previous article.

However, there are some lesser known aspects of this law, that may give a big benefit to many recent immigrants seeking to reunify their families. These aspects are the expanded "K" visa benefits, and the new "V" visa.

I am a permanent resident, and got married soon after I got my green card. Unfortunately, my wife remains in her home country of Ukraine, and cannot get a tourist visa to come visit me. Although I filed a petition for her three years ago, which was approved, we are still waiting for her "priority date" to become current. Can the new law help me?

Yes. As you know, because your wife is the beneficiary of the petition she is an "intending immigrant." She therefore will not be granted a tourist visa by a consulate. However, the new law creates a new "V" visa, which would allow her to enter the U.S. and obtain work authorization here while waiting for her priority date to become current.

In short, the new "V" Visa, allows the spouses and minor children of lawful permanent residents who have been waiting more than three years for a green card, to enter the United States and be granted work authorization. In order to qualify the spouse or child must meet the following criteria:

First, a green card petition must have been filed on or before enactment of the law – December 21, 2000.

Second, the beneficiary have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their "turn" in the green card line.

Third, the law provides that periods in the United States in unauthorized status will not prevent someone from obtaining a V visa. The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully. With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.

I was naturalized in October, and in November filed a petition on behalf of my new husband who lives in Russia. However, I heard that the INS can take up to two years to process the petition. Will the new law give me any way to shorten the wait?

Yes. The new law also covers your situation.

In order to address the severe backlogs on the processing of petitions for family members, the LIFE Act helps the spouses of United States citizens who are outside of the United States and waiting for the approval of an immigrant petition. Any minor children who are seeking to accompany the spouse are also provided protection.

The bill expands the use of the "K" visa, which currently allows fiancées of U.S. citizens to enter the United States for the purposes of getting married, to be used by spouses of U.S. citizens who are already married and are waiting outside of the United States for the approval of their immigrant visa petitions. Any minor children who are accompanying the spouse can be included in the petition. In order to qualify the spouse and minor children must meet the following criteria:

First, an immigrant visa petition must have been previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.

Second, the recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.

Third, the K visa petition must be filed in the United States. The petition for the K visa must be filed in the United States by the U.S. citizen spouse.

If marriage occurs outside of the U.S., the K visa must be issued by the consulate where the marriage occurred. Where the marriage to the U.S. citizen occurred outside of the United States, the statute says that, at the time of admission, the alien must have "a valid non-immigrant visa issued by a consular officer in the foreign state in which the marriage was concluded."

The bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.

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