[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR214.15]



[Page 380-383]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 214_NONIMMIGRANT CLASSES--Table of Contents

 

Sec. 214.15  Certain spouses and children of lawful permanent residents.



    (a) Aliens abroad. Under section 101(a)(15)(v) of the Act, certain 

eligible spouses and children of lawful permanent residents may apply 

for a V nonimmigrant visa at a consular office abroad and be admitted to 

the United States in V-1 (spouse), V-2 (child), or V-3 (dependent child 

of the spouse or child who is accompanying or following to join the 

principal beneficiary) nonimmigrant status to await the approval of:

    (1) A relative visa petition;

    (2) The availability of an immigrant visa number; or

    (3) Lawful permanent resident (LPR) status through adjustment of 

status or an immigrant visa.

    (b) Aliens already in the United States. Eligible aliens already in 

the United States may apply to the Service to obtain V nonimmigrant 

status for the same purpose. Aliens in the United States in V 

nonimmigrant status are entitled to reside in the United States as V 

nonimmigrants and obtain employment authorization.

    (c) Eligibility. Subject to section 214(o) of the Act, an alien who 

is the beneficiary (including a child of the principal alien, if 

eligible to receive a visa under section 203(d) of the Act) of an 

immigrant visa petition to accord a status under section 203(a)(2)(A) of 

the Act that was filed with the Service under section 204 of the Act on 

or before December 21, 2000, may apply for V nonimmigrant status if:

    (1) Such immigrant visa petition has been pending for 3 years or 

more; or

    (2) Such petition has been approved, and 3 or more years have passed 

since such filing date, in either of the following circumstances:

    (i) An immigrant visa is not immediately available to the alien 

because of a waiting list of applicants for visas under section 

203(a)(2)(A) of the Act; or

    (ii) The alien's application for an immigrant visa, or the alien's 

application for adjustment of status under section 245 of the Act, 

pursuant to the approval of such petition, remains pending.

    (d) The definition of ``pending''. For purposes of this section, a 

pending petition is defined as a petition to accord a status under 

section 203(a)(2)(A) of the Act that was filed with the Service under 

section 204 of the Act on or before December 21, 2000, that has not been 

adjudicated. In addition, the petition must have been properly filed 

according to Sec. 103.2(a) of this chapter, and if, subsequent to 

filing, the Service returns the petition to the applicant for any reason 

or makes a request for evidence, the petitioner must satisfy the Service 

request within the time period set forth at Sec. 103.2(b)(8) of this 

chapter. If the Service denies a petition, but the petitioner appeals 

that decision, the petition will be considered pending until the 

administrative appeal is decided by the Service. A petition rejected by 

the Service as not properly filed is not considered to be pending.

    (e) Classification process for aliens outside the United States--(1) 

V nonimmigrant visa. An eligible alien may obtain a V nonimmigrant visa 

from the



[[Page 381]]



Department of State at a consular office abroad pursuant to the 

procedures set forth in 22 CFR 41.86.

    (2) Aliens applying for admission to the United States as a V 

nonimmigrant at a port-of-entry. Aliens applying under section 235 of 

the Act for admission to the United States at a port-of-entry as a V 

nonimmigrant must have a visa in the appropriate category. Such aliens 

are exempt from the ground of inadmissibility under section 212(a)(9)(B) 

of the Act.

    (f) Application by aliens in the United States. An alien described 

in paragraph (c) of this section who is in the United States may apply 

to the Service to obtain V nonimmigrant status pursuant to the 

procedures set forth in this section and 8 CFR part 248. The alien must 

be admissible to the United States, except that, in determining the 

alien's admissibility in V nonimmigrant status, sections 212(a)(6)(A), 

(a)(7), and (a)(9)(B) of the Act do not apply.

    (1) Contents of application. To apply for V nonimmigrant status, an 

eligible alien must submit:

    (i) Form I-539, Application to Extend/Change Nonimmigrant Status, 

with the fee required by Sec. 103.7(b)(1) of this chapter;

    (ii) The fingerprint fee as required by Sec. 103.2(e)(4) of this 

chapter;

    (iii) Form I-693, Medical Examination of Aliens Seeking Adjustment 

of Status, without the vaccination supplement; and

    (iv) Evidence of eligibility as described by Supplement A to Form I-

539 and in paragraph (f)(2) of this section.

    (2) Evidence. Supplement A to Form I-539 provides instructions 

regarding the submission of evidence. An alien applying for V 

nonimmigrant status with the Service should submit proof of filing of 

the immigrant petition that qualifies the alien for V status. Proof of 

filing may include Form I-797, Notice of Action, which serves as a 

receipt of the petition or as a notice of approval, or a receipt for a 

filed petition or notice of approval issued by a local district office. 

If the alien does not have such proof, the Service will review other 

forms of evidence, such as correspondence to or from the Service 

regarding a pending petition. If the alien does not have any of the 

items previously mentioned in this paragraph, but believes he or she is 

eligible for V nonimmigrant status, he or she should state where and 

when the petition was filed, the name and alien number of the 

petitioner, and the names of all beneficiaries (if known).

    (g) Period of admission--(1) Spouse of an LPR. An alien admitted to 

the United States in V-1 nonimmigrant status (or whose status in the 

United States is changed to V-1) will be granted a period of admission 

not to exceed 2 years.

    (2) Child of an LPR or derivative child. An alien admitted to the 

United States in V-2 or V-3 nonimmigrant status (or whose status in the 

United States is changed to V-2 or V-3) will be granted a period of 

admission not to exceed 2 years or the day before the alien's 21st 

birthday, whichever comes first.

    (3) Extension of status. An alien may apply to the Service for an 

extension of V nonimmigrant status pursuant to this part and 8 CFR part 

248. Aliens may apply for the extension of V nonimmigrant status, 

submitting Form I-539, and the associated filing fee, on or before 120 

days before the expiration of their status. If approved, the Service 

will grant an extension of status to aliens in V nonimmigrant status who 

remain eligible for V nonimmigrant status for a period not to exceed 2 

years, or in the case of a child in V-2 or V-3 status, the day before 

the alien's 21st birthday, whichever comes first.

    (4) Special rules. The following special rules apply with respect to 

aliens who have a current priority date in the United States, but do not 

have a pending application for an immigrant visa abroad or an 

application to adjust status.

    (i) For an otherwise eligible alien who applies for admission to the 

United States in a V nonimmigrant category at a designated Port-of-Entry 

and has a current priority date but does not have a pending immigrant 

visa abroad or application for adjustment of status in the United 

States, the Service will admit the alien for a 6-month period (or to the 

date of the day before the alien's 21st birthday, as appropriate).

    (ii) For such an alien in the United States who applies for 

extension of V



[[Page 382]]



nonimmigrant status, the Service will grant a one-time extension not to 

exceed 6 months.

    (iii) If the alien has not filed an application, either for 

adjustment of status or for an immigrant visa within that 6-month 

period, the alien cannot extend or be admitted or readmitted to V 

nonimmigrant status. If the alien does file an application, either for 

adjustment of status or for an immigrant visa within the time allowed, 

the alien will continue to be eligible for further extensions of V 

nonimmigrant status as provided in this section while that application 

remains pending.

    (h) Employment authorization. An alien in V nonimmigrant status may 

apply to the Service for employment authorization pursuant to this 

section and Sec. 274a.12(a)(15) of this chapter. An alien must file 

Form I-765, Application for Employment Authorization, with the fee 

required by 8 CFR 103.7. The Service will grant employment authorization 

to aliens in V nonimmigrant status who remain eligible for V 

nonimmigrant status valid for a period equal to the alien's authorized 

admission as a V nonimmigrant.

    (i) Travel abroad; unlawful presence--(1) V nonimmigrant status in 

the United States. An alien who applies for and obtains V nonimmigrant 

status in the United States will be issued Form I-797, Notice of Action, 

indicating the alien's V status in the United States. Form I-797 does 

not serve as a travel document. If such an alien departs the United 

States, he or she must obtain a V visa from a consular office abroad in 

order to be readmitted to the United States as a V nonimmigrant. This 

visa requirement, however, does not apply if the alien traveled to 

contiguous territory or adjacent islands, possesses another valid visa, 

and is eligible for automatic revalidation.

    (2) V nonimmigrants with a pending Form I-485. An alien in V 

nonimmigrant status with a pending Form I-485 (Application to Register 

Permanent Residence or Adjust Status) that was properly filed with the 

Service does not have to obtain advance parole in order to prevent the 

abandonment of that application when the alien departs the United 

States.

    (3) Unlawful presence--(i) Nonimmigrant admission. An alien 

otherwise eligible for admission as a V nonimmigrant is not subject to 

the ground of inadmissibility under section 212(a)(9)(B) of the Act. 

This is true even if the alien had accrued more than 180 days of 

unlawful presence in the United States and is applying for admission as 

a nonimmigrant after travel abroad.

    (ii) Permanent resident status. A V nonimmigrant alien is subject to 

the ground of inadmissibility under section 212(a)(9)(B) of the Act when 

applying for an immigrant visa or for adjustment of status to that of a 

lawful permanent resident. Therefore, a departure from the United States 

at any time after having accrued more than 180 days of unlawful presence 

will render the alien inadmissible under that section for the purpose of 

adjustment of status or admission as an immigrant, unless he or she has 

obtained a waiver under section 212(a)(9)(B)(v) of the Act or falls 

within one of the exceptions in section 212(a)(9)(B)(iii) of the Act.

    (j) Termination of status--(1) General. The status of an alien 

admitted to the United States as a V nonimmigrant under section 

101(a)(15)(V) of the Act shall be automatically terminated 30 days 

following the occurrence of any of the following:

    (i) The denial, withdrawal, or revocation of the Form I-130, 

Petition for Immediate Relative, filed on behalf of that alien;

    (ii) The denial or withdrawal of the immigrant visa application 

filed by that alien;

    (iii) The denial or withdrawal of the alien's application for 

adjustment of status to that of lawful permanent residence;

    (iv) The V-1 spouse's divorce from the LPR becomes final; or

    (v) The marriage of an alien in V-2 or V-3 status.

    (2) Dependents. When a principal alien's V nonimmigrant status is 

terminated, the V nonimmigrant status of any alien listed as a V-3 

dependent or who is seeking derivative benefits is also terminated.

    (3) Appeals. If the denial of the immigrant visa petition is 

appealed, the alien's V nonimmigrant status does not



[[Page 383]]



terminate until 30 days after the administrative appeal is dismissed.

    (4) Violations of status. Nothing in this section precludes the 

Service from immediately initiating removal proceedings for other 

violations of an alien's V nonimmigrant status.

    (k) Naturalization of the petitioner. If the lawful permanent 

resident who filed the qualifying Form I-130 immigrant visa petition 

subsequently naturalizes, the V nonimmigrant status of the spouse and 

any children will terminate after his or her current period of admission 

ends. However, in such a case, the alien spouse or child will be 

considered an immediate relative of a U.S. citizen as defined in section 

201(b) of the Act and will immediately be eligible to apply for 

adjustment of status and related employment authorization. If the V-1 

spouse or V-2 child had already filed an application for adjustment of 

status by the time the LPR naturalized, a new application for adjustment 

will not be required.

    (l) Aliens in proceedings. An alien who is already in immigration 

proceedings and believes that he or she may have become eligible to 

apply for V nonimmigrant status should request before the immigration 

judge or the Board, as appropriate, that the proceedings be 

administratively closed (or before the Board that a previously-filed 

motion for reopening or reconsideration be indefinitely continued) in 

order to allow the alien to pursue an application for V nonimmigrant 

status with the Service. If the alien appears eligible for V 

nonimmigrant status, the immigration judge or the Board, whichever has 

jurisdiction, shall administratively close the proceeding or continue 

the motion indefinitely. In the event that the Service finds an alien 

eligible for V nonimmigrant status, the Service can adjudicate the 

change of status under this section. In the event that the Service finds 

an alien ineligible for V nonimmigrant status, the Service shall 

recommence proceedings by filing a motion to re-calendar.



[66 FR 46702, Sept. 7, 2001]