V Visa Processing Next Steps
R 010251Z SEP 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH AMEMBASSY FREETOWN
POUCH PRISTINA
POUCH DUSHANBE
POUCH BELGRADE
POUCH NDJAMENA
UNCLAS STATE 151917
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: V Visa Processing - Next Steps
REF: A) STATE 057338 B) STATE 035234
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Summary
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1. By the end of August, V eligible applicants with files at NVC and F2A priority dates through September 30, 1998 will be listed in CLASS and will receive a V information letter from NVC. V1, V2, V3 classification definitions are herein clarified.
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More V Applicants Have Been Added to CLASS, But Check the Priority Date in the CLASS Hit Before Issuing a V Visa.
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2. Names of prospective V applicants with F2A priority dates between April 1, 1998 to September 30, 1998 have been entered into CLASS, and NVC is completing the mailing of V information letters. Full text of NVCs letter is below. We decided to advance entering names of V applicants into CLASS because many applicants who will be eligible for a V are approaching posts to ask when they might apply. Rather than tell them that there is no record of eligibility, posts will be able to tell inquirers when they might apply. NVC has already begun identifying the next batch of V eligible applicants with priority dates through December 31, 1998.
3. Under this new system, consular officers are reminded that a hit in CLASS will no longer mean that an applicant is immediately eligible to apply for a V. The CLASS hits include the applicants priority date, and consular officers must now check the priority date to ascertain that the required three-year waiting period has been met before a V visa can be issued.
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Text of NVCs V Information Letter
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4. Begin FYI: Dear Applicant:
According to our records, you have a visa petition on file as the spouse or child of a Legal Permanent Resident. The Legal Immigration Family Equity Act created the V visa to allow spouses and minor children of Legal Permanent Residents to enter the U.S. to live and work legally in the U.S. while waiting for immigrant status. You may be eligible to apply for the V visa.
Our Website at HTTP://TRAVEL.STATE.GOV has information about V visas. If you are outside the United States, you must apply for the V visa at selected US Embassies or Consulates. If you are in the U.S., you may apply to change your current status (regardless of what that status might be) to V status by contacting the U.S. Bureau of Citizenship and Immigration Services in the Department of Homeland Security. USCIS has a Website at: HTTP://USCIS.USDOJ.GOV.
You should also be aware of the 3- and 10- year bars, which are triggered by a departure from the United States after accruing unlawful presence on or after April 1, 1997. Generally, the 3-year ban applies to persons who accrued more than 180 days of unlawful presence, and the 10-year bar applies to persons who accrued 1 year or more of unlawful presence. V nonimmigrants can trigger the 3/10 bars in one of two ways. Persons applying for V visas abroad may have already triggered the bar when they left the United States. Persons applying to change their status to V in the U.S. may later trigger the bar by traveling, if they had already accrued enough unlawful presence before their status was changed to V. In any case, V''s who have triggered the bar become inadmissible when they apply for adjustment of status to permanent residence, unless USCIS approves a waiver at the time of application for adjustment.
If your immigrant visa case priority date is current for processing, you are not eligible for a V visa, and you will soon receive information on how to apply for your immigrant visa. Otherwise, to apply for a V visa overseas, use the attached contact information sheet to telephone the consular section at the embassy or consulate listed below, and they will give you further instructions.
Records show that your visa file has been assigned to the post below:
Name of post
Address
When communicating with the consular section by telephone, letter or e-mail, you must give your full name and case number as they appear below:
Applicants name
Applicants case number
Applicants USCIS receipt number
You need to complete the V visa application worksheet (DS-3052). Please write your telephone number and address on the form. We have included one with this mailing, but it too is available on our website.
Sincerely,
Bureau of Consular Affairs End FYI.
5. Enclosed with the letter is a list of posts and telephone numbers as well as the DS 3052. The DS 3052 has been revised and will include mailing addresses for both the applicant and the petitioner. It will be distributed to posts shortly.
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The NVC V Information Letter Is Not a Prerequisite for V Processing
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6. The Department reminds posts that NVC''s letter to V applicants is intended to inform applicants that they may be eligible to apply for a V. Posts should not ask applicants to submit the letter as proof that they may be eligible to apply for a V. There are no security features in the letter, and the letter is of no use to adjudicating consular officers at post. Consular officers should instead use the CLASS system for this purpose as that is the intent of adding V hits to CLASS.
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9B Ineligibility
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7. As posts are aware, the LIFE Act specifically exempted V visa applicants from the ineligibility of 212(a)(9)(B). However, there is no similar exemption from 9B for those V applicants who later apply for permanent resident status. The third paragraph in the NVC letter to V applicants was written by USCIS and was included in the letter to advise applicants of this future potential ineligibility.
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V-1, V-2, V-3 Clarified
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8. In order to conform to the manner in which USCIS is defining these V classifications, posts must issue V visas as follows:
V-1 - issue to the principal applicant who is the spouse of an LPR for whom a petition was filed with USCIS on or before December 21, 2000 and who has waited three years since the filing date of the petition.
V-2 - issue to a child of an LPR for whom an individual petition was filed by the LPR parent, on or before December 21, 2000, who has waited three years since the filing of the petition.
V-3 - issue to a derivative child of a V-1 or V-2 visa holder.
9. Formerly, most posts issued V-2 to all children of the V-1 regardless of whether or not the child had an individual petition in his/her name. By issuing V-2 to all children, the POE was unable to determine if a V-2 holder was actually a derivative unable to enter the U.S. before the principal applicant. The Department''s instruction in para 3 of reftel B is rescinded. Conoffs must use the revised definitions of V1, V2, and V3 so that consular and USCIS practices are the same in this regard.
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Dependents and CLASS Hits
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10. As noted in previous ALDACS on V visas, we used the F2A I-130 files at NVC to create the V hits in CLASS. Any dependent included on the original petition was added as a separate CLASS hit. As in IV processing, any derivative who can demonstrate that he/she is the minor, unmarried child of a V1 principal applicant is entitled to derivative status. Names of dependents who were not listed on the original petition, perhaps because they were born after the filing of the petition, are not found in CLASS because NVC had no means to know of the existence of any dependents except for those listed on the petition, yet they are eligible to apply for a V visa.
11. It is not necessary for posts to request that the name of an eligible dependent be added to CLASS. NVC does not enter the CLASS hits; this is done by technical staff in Washington using the NVC database. If a derivative of a V1 is deemed eligible for V3 issuance, post need only send a Visas Hawk to NVC for the NCIC namecheck if the individual is at least 16 years of age. Once the NCIC namecheck is done, the V 3 can be issued without the CLASS hit.
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Don''t tell applicants they are not eligible for V because their petitions are not yet approved by USCIS
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12. To be eligible for a V visa, the LIFE act stipulates only that the petition must have been filed on or before December 21, 2000, and that the applicant has waited three years since the filing date. It does not mandate that USCIS must approve the I-130 petition before a V may be issued.
13. Procedurally, because the Department wanted to implement the LIFE Act ASAP and did not want to wait for USCIS to come up with a method to verify petition filings, we decided to begin with those cases for which we knew that the petition had been filed. Those were the cases in storage at NVC that had been approved by USCIS and forwarded to NVC to await availability of a visa number. Since the enactment of the LIFE Act, VO has been working with USCIS to verify the filing of petitions with USCIS that are not yet approved by USCIS. We do not yet have an answer, but we hope to establish an electronic link with USCIS to identify this type of case. The Department will have some news to share with posts on this matter in the next few weeks.
14. Meanwhile, posts should advise individuals who are potential beneficiaries of unapproved F2A petitions that were filed over three years ago that they (or their petitioner) may contact USCIS to request verification of the filing of the petition. USCIS should subsequently fax such verification to NVC at 603-334-0759. Do not rpt not advise potential applicants or petitioners to contact NVC.
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Secondary Evidence of Petition Filing Presented by Applicant
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15. As stated above, we continue to work with USCIS to verify petition filings and add applicants eligible to apply for a V to CLASS. Absent the original approved petition at NVC or post, USCIS is the only entity that can confirm that an I-130 petition was filed. While this is not stipulated in the LIFE Act, it is the only sensible procedure available. At this time, posts have no authority to examine secondary evidence such as I-797 notices and determine eligibility to apply for a V based solely on that secondary evidence. As noted above, applicants not found in CLASS should be referred to USCIS (not NVC) for verification of petition filing.
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Primary Evidence of Petition Filing at Post
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16. Posts that accept I-130 petition filings and store the files at post are reminded that they already possess primary evidence of the petition filing. If a petition was approved by post and remains at post, a V visa may be processed if the case falls within the parameters of the LIFE Act. Because these files were not at NVC, beneficiaries identified in such petitions will not receive the V information letter, nor will the applicants name appear in CLASS. In such cases, posts must send a Visas Hawk to NVC for the NCIC namecheck before proceeding. It is not necessary to request that these applicants names be added to CLASS.
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Age-Out Cases
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17. V 2 and V 3 visas may be issued until the day before the applicant turns 21, and the visa validity must be limited to the day before they turn 21. There is no provision in the LIFE act to benefit dependents who are over 21 years of age or those who age out in the United States when they become 21. Unlike those who enter the United States in F2A IV status, those who enter as V2 or V3 lose legal status and work authorization when they turn 21. If their status expires, unless they have made a timely application to change to another nonimmigrant status or found another way to maintain lawful immigration status before their V status expired on their 21st birthday, they will be like any other alien in the United States not in valid status. An alien who remains in the United States after the expiration of his/her period of lawful admission without finding another lawful status begins to accrue unlawful presence and is subject to removal. Posts should so inform aging-out applicants who qualify for V issuance.
18. Notwithstanding this difficulty for ageouts, there is no legal reason to deny V visa issuance to those who are about to age out of the class. V visas may be issued up to the day before the applicants 21st birthday. Posts may not refuse applicants about to age out under the intending immigrant provision of Section 214(b) as there is no nonimmigrant intent required of V applicants.
19. As usual in IV processing, aging out V cases should be expedited as much as possible by posts.
20. NVC does not have sufficient staff to check the files manually for a case that does not appear in CLASS, but such searches will be conducted for ageouts. Posts may accept an e-mail message from NVC regarding ageouts in
lieu of a CLASS namecheck; print out the message from NVC and attach it to the OF-156. NVC will as usual perform the NCIC namecheck for ageouts.
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Retrogression
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21. As posts are aware, several Family-sponsored preference category cut-off dates were retrogressed last month in order to keep issuances within the FY 2001 annual limits. With the start of the new fiscal year in October, any cut-off date that was retrogressed will return to the cut-off date established in June 2001.
22. This means that some F2A cases that were current in July were suddenly no longer current. These F2A cases immediately became eligible for V visas as long as they had not been interviewed by a consular officer and were not pending cases. Insofar as post scheduling allows, these cases may be processed as V''s; however, posts are under no requirement to expedite such cases. Posts may wish to explain to applicants that they may prefer waiting until October when their IV case will again be current.
23. In this regard, posts may wish to frontline as many IR cases as possible in September as there will be a crush of family sponsored preference cases for October. Employment-based categories were not retrogressed and remain current with many numbers available for the remainder of FY 01.
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Refusals and Revocations of V Cases
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24. As noted in reftel, cases that are not in the class of applicants outlined by the LIFE act may be refused under Section 214(b). This may include cases that have already aged out or those who did not wait the mandatory three years since the petition filing.
25. If in processing a case, post develops information that indicates the original I-130 petition may have been approved in error, post may return the case to USCIS for revocation. Of course, post will not have on hand the petition and the file from NVC, and USCIS requires the original petition before revocation will be considered. In these cases, post may request the file from NVC by e-mail.
26. If a post has reason to believe that a petitioner may no longer be entitled to legal permanent resident status, the consular officer shall return the petition to the appropriate USCIS office after obtaining the file from NVC. Only USCIS can determine whether an alien has lost LPR status.
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Reminder: No Packets of Documents are Required for V''s
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27. USCIS reports that some V applicants arrive at the POE with an IV-style packet of documents to present to USCIS. These packets include the medical exam, petitioner''s tax records, etc. Posts should not rpt not produce these packets for V applicants. Conoffs should simply return supporting documents to the V applicants and suggest that they safeguard the documents to support later an application for legal permanent resident status.
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V2 and V3 Validity Must be Limited
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28. USCIS also reports that many V2 and V3 applicants applying for entry at the POEs were issued 10-year validity V visas. Posts must rpt must limit the validity of V2 and V3 visas to the day before the applicants twenty-first birthday.
29. FYI: USCIS has opened a new service center in Missouri (MSC) that will handle LIFE Act visa categories, both the V''s and the K3''s. The Department will provide posts information on USCIS procedures as it becomes available so that posts general guidance to the public is complete and accurate.
30. Conoffs may address any questions on the instructions provided in the cable to CA/VO/F/P.
POWELL
