The ABC's of Immigration

INS Guidance on the New H-1B Law

In October, President Clinton signed the American Competitiveness in the Twenty-First Century Act (AC21). This law raises the annual H-1B visa cap to 195,000 for fiscal years 2001, 2002, and 2003. After 2003, barring future legislation on the annual cap, it will revert to 65,000.

While the INS has not released formal regulations on the new law, it did recently release guidance in a question and answer format. What follows is a summary of that guidance.

There are a number of workers who are exempted from the cap. These are:

• Workers employed by an institution of higher learning
• Workers employed by a nonprofit institution related to or affiliated with an institution of higher learning
• Workers employed by a nonprofit or government research organization

Also exempt from the cap are petitions filed between March 22, 2000, when the INS announced that the fiscal year 2000 cap had been reached, and August 31, 2000. The INS estimates that this will be about 30,000 petitions.

If a worker transfers from a cap-exempt position to one that does not qualify for an exemption, the worker will be counted against the cap at the time of the transfer.

Counting the number of H-1B petitions has been a serious problem for the INS. Many may recall that earlier this year it was determined that the INS issued too many visas in fiscal year 1999. There were a number of causes for this. One of the most common was that workers already on an H-1B visa were counted again when they transferred to a new job. In the guidance the INS says that it has been making surveys of H-1B data to ensure that this does not continue to happen, and says that it will continue such actions. The INS says that it reads AC21 as providing forgiveness for the 1999 excess. The agency does not, however, plan to recapture visas issued before the end of fiscal year 1999 but given a start date in fiscal year 2000.

One provision of AC21 allows workers with pending applications for immigration to receive extensions of their H-1B visa past the six-year limit. Under this provision, such one-year extensions are not to count toward the cap. The INS says that it is making system changes to ensure that such extensions are not counted to the cap, and implementing training programs to teach adjudicators when an applicant is eligible for a new six-year period, and therefore counted toward the cap.

According to the INS, AC21 became effective on October 18, 2000, the day after it was signed. The fee increase from $500 to $1000 will take effect on December 17, 2000, 60 days after it was signed.

There are a number of employers who are exempt from the $1000 fee, which are as follows:

• Institutions of higher learning, affiliated and related nonprofit organizations
• Nonprofit and governmental research organizations
• Employers filing for a second extension
• Primary and secondary educational institutions
• Nonprofit organizations engaged in “established curriculum-related clinical training of students”

Note that only the first two groups are also exempt from the annual cap. While the fee increase does not take effect until December 18, exempt employers are now exempt from the current $500 fee. This exemption should be noted on Form I-129W in writing, as the form does not currently provide information for all the new exemptions.

AC21 clarifies when amended H-1B petitions are required. In the past there has been great confusion about when a corporate change requires an amended petition. The new law clarifies that an amended petition is not required when there are corporate structure changes so long as the new entity succeeds to the interests and obligations of the petitioning employer as long as the terms and conditions of employment remain the same.

One of the most sought after provisions in AC21 is the “portability” provision, which eases the process of changing jobs. Under it, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker. In the past, the worker had to wait for the petition to be approved before he could begin working for the new employer. Because this provision applies to petitions for new employment filed before or after the enactment of AC21, workers for whom a new petition was filed can begin work for the new employer immediately.

The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact. The INS will further define this in the AC21 regulations. To take advantage of the portability provision, the worker must be in the US pursuant to a lawful admission, and must not have engaged in unauthorized employment since that admission.

The portability provision has created concern among employers about how they will comply with I-9 requirements, which obligate employers to ensure that all employees are legally authorized to work in the US. While the worker who begins working for a new employer after the filing of a new petition is work authorized, the I-9 form contains no provision for such a situation. Employers in this situation should follow current documentation procedures, as well as keeping a copy of the worker’s I-94 and a copy of the receipt notice for the new H-1B petition.

AC21 also contains a number of provisions designed to help workers in H-1B status with pending immigration applications. One section of AC21 removes the per-country limits on employment-based immigration if not all available visas are used in a calendar quarter. Because the State Department issues visas, the INS will not be addressing this issue in its regulations. If the worker has an application for adjustment of status pending, the INS will extend the worker’s H-1B visa until the adjustment application is adjudicated.

As previously mentioned, AC21 provides for one-year extensions of a worker’s H-1B visa when the worker has a pending application for immigration. According to the INS guidance, this provision will apply if the worker has a pending application for a petition for classification as an immigrant worker or application for adjustment of status, and it has been at least 365 days since the filing of a labor certification or immigrant visa petition.

The INS notes that AC21 does not address the status of H-4 dependents, and says that it will examine this issue and will provide guidance in the upcoming regulations.

AC21 encourages the INS to process adjustment of status applications within 180 days and nonimmigrant visa applications within 30 days. The law recognizes that the INS will require additional funding to meet these goals. According to this guidance, the INS is in the process of collecting information so that it can inform Congress of how much additional funding is required and where that funding should go. However, there is no guarantee that Congress will provide this funding, so it is possible that there will be no improvement in processing times.

Congress did indicate that four percent of the $1000 fee should be earmarked for processing. While the INS has been authorized to hire new employees for processing expected increased filings, because of the length of training, it will be some months before any improvement in processing is seen.

The INS is working on regulations to implement AC21. However, because the $1000 fee will impact small business, it will likely have to undergo review required by the Small Business Regulatory Enforcement Fairness Act of 1996. This means that regulations are unlikely to be published before March 2001. The INS is looking into ways to expedite the review process.

New Immigration Provisions Provide Temporary Restoration of Section 245(I),
Expansion of K Visas (Part I of Discussion the New "Life" Bill)

This week President Clinton signed the final budget bill for fiscal year 2001. Among the many parts of the bill are several immigration provisions. The provisions passed represent a fairly even compromise between the competing bills, the Latino and Immigration Fairness Act (LIFA), which was supported by the Administration and congressional Democrats, and the Legal Immigrant Family Equity Act (LIFE), which was supported by congressional Republicans. The bill contains four principle provisions: the temporary restoration of section 245(i), the expansion of the K visa, the creation of the V visa, and restoration of federal court jurisdiction over class action lawsuits related to the 1986 amnesty. An estimated 700,000 people should benefit from the new law. This week we will address section 245(i) and the new uses of the K visa, and next week we will provide information on the new V visa and the 1986 amnesty provisions.

Initially enacted in 1994, section 245(i), referring to its place in the Immigration and Nationality Act, allows many people who have either never had valid immigration status in the US or who have fallen out of valid status to pay a $1000 penalty fee and apply for adjustment of status in the US. The reason that this is so important is that without it, many people who do not have valid status in the US would be required to seek their immigrant visa in their home country, and because of the status violation, would be barred from reentering the US for at least three, and in many cases, ten years.

The provision of the budget bill restoring section 245(i) has two primary requirements. First, applicants for adjustment of status under it must be able to prove that they were in the US on the date that the law was enacted, December 21, 2000. Second, section 245(i) will be in effect only until April 30, 2001. This means that to be eligible for adjustment of status under section 245(i), an application for an immigrant visa must be filed by a qualifying family member on or before April 30, 2001, or that a labor certification or application for an immigrant worker must be filed on or before that date. The effect of this is that people will be able to apply for adjustment of status long after April 30, 2001, so long as the qualifying application is filed by that date.

The following groups of people, who would ordinarily be ineligible for adjustment of status, are able to apply for adjustment of status under section 245(i):

• People who entered the US without inspection;
• People who have fallen out of valid nonimmigrant status or who have otherwise violated the terms of their status;
• People who have engaged in unauthorized employment;
• Crewmembers who entered the US with a D visa;
• People admitted in the transit without visa category; and
• People admitted under the Visa Waiver Pilot Program (now the Visa Waiver Permanent Program).

Some classes of people will remain ineligible for adjustment of status, despite the reinstatement of section 245(i).

• Stowaways,
• People admitted on a K visa who failed to marry the petitioning US citizen within 90 days after arrival;
• People subject to the J-1 two-year home residency requirement;
• People who have failed to appear at a scheduled deportation hearing or asylum interview, or who have failed to follow a deportation order or grant of voluntary departure;
• People who are seeking adjustment of status based on a marriage to a US citizen or permanent resident that was entered into while the person was in deportation proceedings, unless it can be shown that the marriage was entered into in good faith and not for immigration purposes;
• People who were placed in removal proceedings upon their entry to the US;
• Children in nonimmigrant status or seeking to adjust their status as orphans;
• People in S visa status (government informants) who have not received permission from the Attorney General to seek adjustment of status; and
• People who are deportable by reason of having engaged in terrorist activities while in the US.

To apply for adjustment of status under section 245(i), the applicant must submit both Form I-485, the standard adjustment of status application, and Supplement A to Form I-485, in addition to the other required forms. Supplement A is used to determine whether the applicant eligible for adjustment of status under section 245(i). Applicants will also be required to submit proof that they were in the US on the date section 245(i) was reinstated, December 21, 2000.

Because the budget bill was enacted with so little recorded debate, there is no report on the immigration provisions. To address this issue, Sen. Edward Kennedy (D-MA), one of the early supporters of LIFA, included a statement on the intended interpretation of the new immigration laws. With regard to section 245(i), he says that the requirement that the applicant be physically present in the US on the date of enactment should “be interpreted with common sense.” Noting that in many cases it could be difficult for an applicant to prove his or her presence in the US, Sen. Kennedy urged the INS “to be flexible in the types of evidence it will accept.” He also encouraged the INS to conduct outreach programs to inform people of their potential eligibility. He also said that to ensure that all eligible applicants are able to seek adjustment of status, the INS should accept incomplete applications and allow additional documentation to be submitted after the deadline.

It is estimated that approximately 200,000 people will benefit from the temporary restoration of section 245(i).

K Visas

LIFE also expands the use of the K visa. K visas are ordinarily reserved to fiancés and fiancées of US citizens, and their minor children. The visa includes work authorization, and the visa holder must marry the US citizen petitioner within 90 days of their arrival in the US. LIFE makes spouses and minor children of US citizens who are waiting abroad for approval of an immigrant visa petition to enter the US. The spouse will be eligible for work authorization.

To be eligible for this new use of the K visa, an immigrant visa petition must have already been filed when the application for the K visa is made. The law allows K visas to be issued to people for whom an immigrant visa application was filed before or after the law was enacted. As with all K visa petitions, the US citizen must file it with the INS in the US, and the spouse must be outside the US. If the marriage occurred outside the US, the K visa must be issued by the US consulate with jurisdiction over the location where the marriage occurred.

The other requirements of the K visa apply to K visa applications under this new law. While these requirements primarily relate to requirements that the couple must have met in person within the last two years, this will not normally be an issue when there is a marriage. However, the marriage could not have been entered into solely for immigration benefits and the marriage must be legally valid.

New Immigration Provisions: New V Visa, Amnesty Litigation Relief NACARA (Part II of Discussion of the New "Life" Bill

On December 21, 2000, the Legal Immigration Family Equity Act was signed into law. The new law makes numerous important changes in immigration law. Last week we discussed the temporary restoration of section 245(i) and the expansion of the use of K visas. This week we will discuss the other immigration provisions in the law, the new V visa, changes in the application of the Nicaraguan Adjustment and Central American Relief Act, and changes in the treatment of applications under the 1986 amnesty.

V Visas

The LIFE Act creates a new visa category, the V visa. This visa will be used by spouses and children of permanent residents whose applications for immigration have been pending for at least three years.

To be eligible for a V visa, the applicant must be the beneficiary of an application for an immigrant relative that was filed on or before December 21, 2000. The petition must have been pending for three years at the time the V visa application is made. However, if the petition has been approved, the person can still obtain a V visa if the petition was filed more than three years ago and there is no immediately available immigrant visa, a pending application for an immigrant visa, or a pending application for adjustment of status. If the qualifying application is denied, the V visa status terminates 30 days after the date of the denial.

V visa holders will have employment authorization. Applicants for a V visa who are outside the US at the time of the application will not be subject to the three and ten year bars on reentering the US following a period of unlawful presence. Applicants who are in the US are likewise not subject to the bars, nor are they subject to two other grounds of inadmissibility, entering the US without inspection and entering the US without the proper documentary requirements.

V visa holders will be eligible to apply for adjustment of status when an immigrant visa becomes available. However, if after obtaining the V visa, the person ever falls out of valid status, they will not be allowed to apply for adjustment of status. The person must include a $1000 penalty fee if they would be subject to the fee under section 245(i).

NACARA

If a person is deported from the US and then reenters without INS permission, the order under which they were deported may be reinstated and the person deported again. Under prior INS interpretations of NACARA, a person who was deported, reentered, and had the deportation order reinstated was ineligible to apply for relief under NACARA. The LIFE Act changes this position and provides that a person who is otherwise eligible for NACARA relief “shall not be barred from applying for such relief” because of the reinstatement of a deportation order.

Late Amnesty Cases

In 1986, the Immigration Reform and Control Act (IRCA) granted amnesty to many undocumented immigrants who had been in the US continuously since 1982. The law did allow people who had been absent from the US for only “brief, casual and innocent” periods of time to apply for the amnesty. An INS interpretation of this provision resulted in applications from thousands of people being “front-desked” – the term used for applications that were not even accepted for processing. Many more people, hearing of this interpretation, did not even make applications.

Many lawsuits were filed challenging the INS interpretation, and the courts ruled that the INS interpretation was illegal, and that it had to accept applications from people despite any brief absences from the US. These suit dragged on for years, and in 1996 Congress enacted a law that eliminated federal court jurisdiction over these cases. The LIFE Act will allow people who were eligible for the 1986 amnesty but were rejected because of INS error to seek adjustment of status to permanent resident.

To qualify for late legalization under LIFE, the applicant must show the following:     

• On or before October 1, 2000 they filed a written claim for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano;
• They entered the US before January 1, 1982 and resided continuously in the US in unlawful status from that point through May 4, 1988;
• They were continuously physically present in the US from November 6, 1986 through May 4, 1988 (brief, casual and innocent absences will not interrupt continuous physical presence);
• They filed an application for adjustment of status within one year of the issuance of the final regulations implementing the LIFE Act, which are to be issued within 120 days of the law’s enactment;
• They have not been convicted of a felony or of three misdemeanors, have not been involved in the persecution of another person on the basis of that person’s race, religion, nationality, political opinion, or membership in a particular social group;
• They are admissible to the US as an immigrant. Waivers of admissibility may be obtained for all grounds except those based on criminal status, drug offenses, security concerns and public charge grounds; and
• They are able to pass the naturalization exam, or are currently engaged in a course of study that will give them the understanding of English and civics necessary to pass the exam.

In a statement included with the legislation, Sen. Edward Kennedy (D-MA) noted that while the law is limited to the three cases mentioned above, there are other cases that they were unaware of until too late to include in the law that are in the same position as the cases mentioned in the law. The statement encourages the government to find just resolutions for the plaintiffs in these cases. It also notes that there are many other class action lawsuits related to the 1986 amnesty. While these cases are different from the ones covered in the LIFE Act because they are not based on regulations the INS later admitted were illegal, it has been 15 years since the amnesty was passed, and the statement encourages both the plaintiffs and the government to reach a settlement in these cases.

Under the LIFE Act, late legalization applicants will, unlike the initial applicants under the Immigration Reform and Control Act, who were granted temporary resident status before being allowed to seek full residence, be eligible to seek permanent residence directly. Once an application has been filed with the INS, the applicant is entitled to work authorization and permission to travel. They are also protected from deportation.

The law also directs the INS to come up with a plan for allowing people who are now eligible for legalization but are outside the US to apply for adjustment of status with the INS.

The LIFE Act prevents the application of section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act, which eliminated federal court jurisdiction over many cases related to the 1986 amnesty, to new applicants.

Applications made under the LIFE Act will be confidential, and cannot be used by the INS to initiate deportation proceedings. However, information submitted in the application can be used by the INS to revoke the grant of permanent residence.

Along with giving eligible people a chance to again seek the amnesty to which they were entitled 15 years ago, the LIFE Act expands the family reunification provisions that were enacted after the amnesty. Under these provisions, spouses and minor children of applicants for late legalization cannot be deported based on their unlawful presence, and they are to be given work authorization. To be eligible, the spouse or child must have entered the US before December 1, 1998, and must have not been convicted of a felony, three misdemeanors, engaged in persecution, or be a security risk. Spouses and children of applicants who are out of the country are to be paroled into the US so that they may receive the family reunification benefits.

Private Bills

During the past year, Congress passed 17 private immigration bills granting permanent residency to a small number of individuals. Private bills are a rare form of relief from immigration laws and are generally reserved for the most compelling cases. In the legislative process, private bills are treated like any other law, going though the committee process to a vote by the full Congress. However, getting a private bill introduced is not easy. The immigration subcommittees in both the House of Representatives and the Senate have detailed rules on what is required for the introduction of such a bill.

The most essential step in obtaining a private bill is, of course, finding a member of Congress willing to sponsor the bill. Following the introduction of the bill, information about the person it will benefit needs to be supplied to the chair of the immigration subcommittee by the member of Congress sponsoring the bill. The procedure from there is much the same as it is with other legislation.

In the first story in this newsletter at http://www.visalaw.com/00dec3/1dec300.html, we told you about three clients of Siskind, Susser, Haas & Devine who benefited from private bills this year. The stories behind some of the other private bills passed this year follow:

Wei Jingsheng. Senator Spencer Abraham (R-MI) introduced a private bill to grant permanent residence in the US to of this Chinese national who spent 29 years in prison in China because of his pro-democracy activities. Jingsheng was released by authorities to seek medical treatment in the US in 1997.

Jacqueline Salinas and her children Gabriela, Alejandro and Omar. Senator Fred Thompson (R-TN) introduced a private bill to grant permanent residence to this family. They originally came to the US to seek treatment for Gabriela’s cancer at the St. Jude’s Children’s Research Hospital in Memphis, TN. While here, the family was in a car wreck that killed Mr. Salinas and another child.

Persian Gulf Evacuees. Representative Nick Rahall (D-WV) introduced a private bill to help 54 families who were unable to obtain legal status following their evacuation from Kuwait during the Gulf War. Many of the evacuees had provided shelter to Americans caught in Iraq when the war started, actions that put them at risk of retaliation from the Iraqi government.

Guy Taylor. Senator Dianne Feinstein (D-CA) introduced a private bill to obtain permanent residence for this young man. He was born in Canada but spent most of his life in the US. His father died before he was born, and after he and his mother moved back to Canada, she died of a drug overdose. Taylor returned to live with his grandmother in California, but was unable to seek permanent residence on his own because he was under 21, and because he was over 16 he could not be adopted by his grandmother.

Tony Lara. Senator Dianne Feinstein (D-CA) introduced a private bill to obtain permanent residence for Tony. In 1990, Tony, along with his parents and sister, fled El Salvador during the country’s civil war. His mother was deported and died trying to reenter the US. His father turned to drugs, abandoned his children and was eventually deported. A neighbor family took Tony and his sister in, and adopted his sister, but could not afford to adopt Tony. Tony was taken in by the wrestling coach at his high school, and went on to win the state wrestling championship for his class.

Jose Guadalupe Tellez Pinales. Senator Charles Grassley (R-IA) introduced a private bill to obtain permanent residence for Jose. Jose entered the US with his parents when he was three years old. After his father died, his mother left him with a great-uncle. The uncle later obtained citizenship, and mistakenly thought it would make Jose a citizen as well. By the time they realized the mistake, Jose was too old to be adopted, and without any recourse to legalized his status in the US.

Saeed Rezai. Representative Chris Cannon (R-UT) introduced a private bill to obtain permanent residence for Mrs. Rezai, an Iranian national. She entered the US in 1986 as a student, and later married a US citizen. She obtained conditional permanent residence, but was divorced before the conditions were removed. She filed a request for a waiver of the requirement that an application for removal of conditions be filed by both spouses, but it was denied, as was her application for asylum. Mrs. Rezai later married another US citizen, but the application for adjustment was denied because her spouse had previously been found to have committed marriage fraud. In the meantime, Mrs. Rezai developed multiple sclerosis.

The Congressmen who support private bills do a tremendous amount of work to ensure their passage, and without their efforts, those who benefit from the bills would most likely be forced to leave the US.

Inadmissibility - Waivers for Health Grounds

Beginning in 1957, responding to hardships caused by inadmissibility based on a diagnosis of tuberculosis, Congress began creating waivers of inadmissibility. In 1963 the waivers became a permanent part of immigration law. Today, waivers are available for most of the health related grounds of inadmissibility, but not for drug abuse and addiction.

The waiver for communicable diseases is available to spouses, minor children and unmarried sons and daughters of citizens and permanent residents. The waiver for vaccinations is available in one of two ways. First, a physician can make the determination that the vaccine is medically contraindicated. The second way is based on religious beliefs or moral convictions that forbid the immigrant from obtaining the vaccination. Waiver of the physical and mental disorder is also available.

If the waiver is required because of tuberculosis, the following requirements must be satisfied. First, the immigrant must agree that upon admission to the US they will immediately see a doctor to whom they will present medical records relating to their diagnosis. The sponsor of the immigrant must present evidence that arrangements have been made for the immigrant's medical care once in the US.

Waivers are available for people who test positive for the HIV virus and for AIDS. To obtain the waiver, the immigrant must show a number of things. First, they must demonstrate that their admission would not be a risk to US public health. Second, they must show that there is not much likelihood they will spread the condition. Third, they must show that their condition will not impose any costs on any government agency without the agency's prior consent. Generally, the immigrant will have to show that they have arranged for medical treatment in the US, that they are aware of the seriousness of their condition and how it is spread, and a notice of formal consent from a government agency that it will be responsible for treatment.

Waivers of the physical or mental disorder ground of inadmissibility are available, but require substantial documentation. First, the immigrant must submit a medical report containing their complete medical history, including details about any hospitalizations. The report should also include an examination by a psychiatrist. If the immigrant has a history of mental illness, the report should include information that would support a finding that the immigrant has recovered. Once the report is found acceptable, the immigrant must submit a statement from a hospital or physician that it will examine the immigrant upon their arrival in the US.

Labor Department Issues Long Awaited Labor Certification Conversion Regulation

Last Friday the Department of Labor finally released the long awaited regulation for converting traditional labor certification applications into requests for reduction in recruitment. Under the new rule, applications for labor certifications that were filed on or before August 3, 2001 may be converted to reduction in recruitment cases. The DOL hopes that this will help state employment security agencies and regional DOL offices reduce the backlogs of pending applications, and allow for the implementation of a completely new labor certification program. The new rule will become effective on September 4, 2001.

The purpose of the labor certification process is to ensure that there are no US workers available for the position, and to ensure that the wages and working conditions for the job are not such that they will adversely effect wages and working conditions for similarly employed US workers. When the labor certification workload began increasing in 1996, the DOL began promoting the reduction in recruitment process. Under RIR, the employer can conduct advertising on their own, instead of under the supervision of the state employment security agency. If the self conducted recruitment is satisfactory, the application is quickly approved, reducing the caseload at the SESA. Much of the backlog has been reduced, and it is hoped that this conversion regulation will lead to further reductions. Another benefit the conversion regulation will provide is that the conversion can occur without the loss of the priority date. Currently, the employer could withdraw the labor certification application and refile it as an RIR application, but would lose the priority date in doing so.

The most important aspect of the new rule is which cases can qualify for RIR conversion. First, the case must have been filed on or before August 3, 2001. Second, the request for conversion must be made before the SESA places a job order. Even if corrections are needed in the labor certification application, it can still qualify for RIR conversion; however, where the corrections are such that it is unlikely the application will be approved as a request for RIR, the SESA should advise the employer of this. In cases that have been sent to regional DOL offices without having been approved by the SESA (this occurs when the employer challenges SESA determinations, such as the prevailing wage), when the DOL remands the case to the SESA, a request for conversion may be filed.

When the conversion request, along with other documentation required for an RIR application, is submitted to the SESA, this evidence is to be added to the file, which is to be transferred from the regular labor certification line and into the RIR line. While some of these converted cases will have priority dates earlier than other RIR cases already filed, the converted cases will be processed based on the time at which they were placed in the RIR line, not by priority date.

INS Releases K-3 and K-4 Regulations

This week the INS released an interim regulation to implement the new K-3 and K-4 visas created by the Legal Immigration and Family Equity Act last December. This new category allows spouses of US citizen and their children to enter the US while they wait for their immigrant visa to be processed. While there are no numerical restrictions on the number of spouses of US citizens that can immigrate each year, the process can sometimes take more than a year, often resulting in a prolonged separation. To address this problem, the K-3 and K-4 visas were created.

To be eligible for the new K visa, the applicant must be married to a US citizen, who has filed an immigrant visa petition on his or her behalf. To obtain K-3 classification, the citizen spouse must file Form I-129F. Separate applications do not need to be filed for children, because they are derivatives of their parents in the K-3 application. Nonetheless, the best course of action would be to file an immigrant visa application for the child so that the child will be able to become a permanent resident at the earliest possible date.

Once the I-129F is approved, the INS will notify the appropriate consulate abroad. If the marriage occurred abroad, the appropriate consulate is the one with jurisdiction over the place of the marriage. If the marriage occurred in the US, the appropriate consulate is the one with jurisdiction over the residence of the foreign national spouse. While the K-3 and K-4 visas are nonimmigrant visas, because they lead directly to permanent residency, applicants will be required to meet existing requirements for K-1 and K-2 visas. These requirements include obtaining medical exam results and an affidavit of support. It is important for applicants to remember that the three and ten year bars imposed for certain unauthorized overstays in the US are applied to people seeking K-3 visas. However, they can apply for a waiver of these bars.

After obtaining the visa, the K-3 nonimmigrant will be admitted to the US for two years. K-4 nonimmigrants will also be admitted for two years, or until their 21st birthday, whichever is earlier. Only spouses of US citizens abroad will qualify for K-3 visas, as there is no provision for changing status to K-3 from within the US.

People in K-3 and K-4 status will be eligible for employment authorization, but, as with K-1 and K-2 nonimmigrants, they must obtain this authorization by filing Form I-765. To extend employment authorization, the applicant must show that they are continuing to pursue the immigrant visa or adjustment of status. If, after two years, the immigrant visa or adjustment of status has not been approved, the K-3 or K-4 status may be extended for another two years. In the event that that immigrant visa or adjustment of status is denied, the K-3 or K-4 status will be terminated 30 days after the denial. During those 30 days, the foreign spouse must leave the US, and during that period, they are not authorized to work.

The INS expects that most K-3 visa holders will apply for adjustment of status shortly after they enter the US. However, as with the K-1 visa, the adjustment of status can be filed based only on the marriage to the US citizen who applied for the K-3 visa. Applicants for adjustment of status may travel abroad without seeking advance parole by using the K-3 or K-4 visa. The reason for this is that the INS presumes that a person married to a US citizen will not be abandoning their adjustment application simply because they travel abroad.

Finally, the INS hopes to soon develop a new form to use for K-3 and K-4 applications. Since the LIFE Act is already effective, however, it is using the I-129F for the time being.

The interim regulation is available online at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=01-20302-filed.pdf.