State Department Cable On
V And K Visa Processing
(January 30, 2001)

UNCLASSIFIED

TELEGRAM                                         January 30, 2001

To:       ALL DIPLOMATIC AND CONSULAR  POSTS - PRIORITY          

Origin:   VO                                                     

From:     SECSTATE WASHDC (STATE 17318 - PRIORITY)               

TAGS:     CVIS, CMGT                                             

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

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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

regulation.

 

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

classification.

 

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

--------------------------------------------------------

Applicants

----------

 

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

203(a)(2)(B).

 

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.

POWELL

 

 

NOTE: POUCH ADDRESSEES PROTECTED BY IRM/MSO

　

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