AILA Comments on V Visa Regulations

Director
Policy Directives & Instructions Branch
Immigration and Naturalization Service
425 I Street NW, Room 4034
Washington, D.C. 20536 

Re: V Nonimmigrant Classification; Spouses and Children of Lawful Permanent Residents, 66 Federal Register 46697 (9/7/01); (Reference: INS No. 2117-01)

Dear Sir/Madam:

The following are the comments of the American Immigration Lawyers Association (AILA) to the interim regulations regarding the interim regulations with respect to the V visa classification. AILA is a voluntary bar association of nearly 8,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA members represent persons and entities across the immigration spectrum, as well as teach and advocate on all fronts involving immigration issues. 

INS is to be applauded for the provisions of these regulations that reflect an effort to make the process rational and efficient and that reflect an understanding of the intent of Congress. Not requiring an advance parole of V nonimmigrants who travel during the pendency of their adjustment of status application, and designating a 2-year duration for work authorization cards, both reflect sound judgment in conserving both INS adjudicatory and applicants' resources. Also, the intent of Congress permeating the LIFE Act, that maintenance of a previously accorded status is not necessary to qualify for a change of status, is properly reflected in section 248.1(b) of the interim regulation.

Some other provisions of the interim regulations, however, should be reviewed with the same sensibility toward a rational process and the ameliorative intent of Congress:

Medical Examinations Are Unnecessary At This Stage

The requirement in section 214.5(f)(1)(iii) that V visa applicants complete a medical examination is an unnecessary burden under the Paperwork Reduction Act and a waste of the applicants' resources. Once the V nonimmigrant applies for adjustment of status, the process will need to be repeated, thus doubling the expense of the examination and needlessly duplicating documentation at the two stages. Until the LIFE Act, the only nonimmigrant status that required a medical examination was the K fiancé. This was not an undue burden, since the law requires that the K fiancé marry and file for adjustment of status within 90 days. As a result, a second medical examination is not required in that context. Yet, double medical examinations are required for the V status with no explanation or justification. None of the other nonimmigrant categories that allow for dual intent require a medical examination, and none should be required here.

Children Should Not Age Out From V Eligibility

It is unmistakable that the driving force behind Congress' enactment of the V category is the compelling public interest in family unity. This legislation made clear that spouses and children of permanent residents who already have waited three years to be legally unified should not have to wait any longer to be physically together, even if they must continue to wait for their priority dates to become current in order to obtain permanent residence. The LIFE Act was silent on the issue of whether eligibility is measured at the time of adjudication of the application or must continue on an ongoing basis, but made clear that an eligible child under 21 should be granted V status, and made clear the intent to allow children and spouses of permanent residents to come to the U.S. to wait out the duration of the process. It would be consistent with that clear intent that the child be allowed to remain in V status until he can obtain permanent residence. Rescinding V status at the 21st birthday serves only to tear apart the families explicitly brought together by the LIFE Act. AILA therefore urges that the rules limiting admission to under age 21 be deleted.

A Good Cause Exception Should Be Added to the Six-Month Special Rule

AILA applauds the understanding of the realities of family situations reflected in the special rule in section 214.15(f)(4) allowing admissions or extensions of 6 months for persons whose priority dates have become current. However, a minor adjustment is needed. The rule should allow a "good cause" exception to enable extension for an additional period where an emergency situation, such as a death in the family or illness of the applicant, prevents timely completion of the adjustment of status filing.

INS Should Consider Using the Form I-94 As Work Authorization

As indicated above, AILA applauds the provision of the regulation authorizing a two-year Employment Authorization Document. However, we urge that INS go further in its rationalization of the process and make the V status like most other nonimmigrant categories that carry work authorization incident to status: namely, do not require a separate EAD. This would prevent the problem of the average delay of 90 days after entry before the nonimmigrant can work, and would decrease the burden on the Service and the individual of requiring constant renewal of the EAD. The I-94 as employment authorization works for numerous other nonimmigrant categories, and should work for this category as well.

Section 212(a)(9)(B) Should Continue to Be Inapplicable At the Adjustment of Status Stage.

The interim rule subjects a V nonimmigrant to the ground of inadmissibility under INA section 212(a)(9)(B) when he applies for permanent resident. It would appear that this provision of the regulation is contrary to the intent of Congress. As originally drafted, the LIFE Act at section 1102(c) added a section 245(m) that made the grounds of inadmissibility found at sections 212(a)(6)(A), (7) and (9)(B) inapplicable at the adjustment of status stage, just as the legislation made those provisions inapplicable at the V status stage. The LIFE Act Amendments, passed soon thereafter, then deleted that provision of section 1102(c). Although the legislative history is silent on the point, it is clear from the context of Congress' action that the deletion of section 245(m) was made because Congress realized that that section was unnecessary.

The fact that Congress viewed this provision as unnecessary can be seen from a review of the three inadmissibility grounds that were contained in section 245(m): Section 212(a)(6)(A) renders inadmissible those who are present without having been admitted. This section would be necessary for many to obtain V status, since many persons to whom Congress wanted to grant V status would have entered without inspection. But, once they have V status, there is no further need to make (6)(A) inapplicable, since the beneficiaries have now been admitted in V status. Similarly, section 212(a)(7) renders inadmissible those who do not hold the necessary documentation. Making subsection (7) inapplicable is necessary at the V stage to allow individuals without immigrant documents to obtain V status, but is no longer needed once V status is obtained. Clearly, Congress saw that it also was unnecessary to overtly make section 212(b)(9) inapplicable, since implicit in the entire process is an acknowledgement that many people who obtain V status would have accrued unlawful presence, and that unlawful presence should already have been erased when the individual obtained V status. Indeed, this appears to be the reason that the statute refers to an "adjustment" rather than a "change" to V status. Congress viewed V status as the functional equivalent of permanent residence and concluded that inadmissibility grounds like (6)(A), (7), and (9)(B) would be extinguished by the grant of lawful V status. 

INS has already recognized in its LIFE Legalization regulations the inapplicability of section 212(a)(9)(B) even if Congress did not explicitly state that the ground of inadmissibility does not apply. In the legalization context, like the adjustment from V context, it would render the statutory provision nonsensical to apply 212(a)(9)(B). Here, applying subsection (9)(B) at the adjustment stage when it doesn't apply to V status would render the entire V process a cruel hoax by granting a legal status that would be snatched away shortly thereafter. Congress plainly did not intend this. Thus, AILA urges that the regulation be adjusted to reflect what Congress clearly intended: that 212(a)(9)(B) not apply to persons in V status.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION