State Department Issues "How To" Guide to V and K-3 Processing

R 261653Z APR 02
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BELGRADE
NVC PORTSMOUTH 0000
AMEMBASSY DUSHANBE
AMEMBASSY KABUL

UNCLAS STATE 079357

E.O. 12958: N/A

TAGS: CVIS

SUBJECT: Guide To V and K3 Processing

REF:A) 01 STATE 057338, B) 01 STATE 151917, C) 01 STATE 035234, D) 01 STATE 209704, E) 01 STATE 167548, F) STATE 53170

1. Summary: This cable is designed to provide a how-to guide to V and K3 visa processing. New guidance on returning IV files to NVC after a V is issued, revoking V and K3 cases and processing V applicants who received a change of status from INS is introduced. Finally, LIFE legalization applicants may need fingerprinting by posts overseas. End Summary.

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V Visas
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Who is eligible for a V visa?
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2. Spouses and unmarried children of LPRs whose I-130 petitions were filed on or before December 21, 2000 and whose priority dates are at least three years old are eligible to apply for Vs.

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How does a consular officer determine V eligibility?
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3. Look in CLASS and/or the Consular Consolidated Database (CCD). If the applicant is listed in either, then process the V. See Reftels B and D. Check the priority date listed in either site to make sure that three years have passed since the petition was filed. CLASS and the CCD include V eligibility hits for applicants regardless of whether the underlying I-130 petition has been approved by INS. The CCD contains all information on applicants to date received from INS. About every three months, additional V-eligible applicants will be added to CLASS. In the CCD, under the NIV tab, there is a section on V Eligible Applicants. This is available to anyone at post with an IV or NIV role in the CST.

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What about dependents of V applicants?
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4. If a derivative child was listed by the petitioner on the underlying I-130, then he/she may have a separate V hit in CLASS, if the petition was approved by INS and received at NVC. However, there are no derivatives listed in INS data on unapproved petitions. Because the databases are not all-inclusive, posts cannot depend on finding derivative dependents' names listed as V eligible in CLASS. Posts are reminded that just as F2A derivative dependents do not need either a separate petition or an individual listing of their names on the principal applicant's petition in order to be processed as a F2A derivative, V derivative dependents need not be listed in CLASS or the CCD with a V hit to qualify for the V.

5. If the principal applicant's name appears as V eligible in either CLASS or the CCD, and the derivative can demonstrate that he/she is the unmarried child of the principal, then that child qualifies for V issuance regardless of the lack of a separate V hit in their own name. A derivative should not be denied a V for lack of a V hit. Posts must, however, send a Visas Hawk request for an NCIC namecheck for dependents who are at least 16 years old and who do not appear in CLASS. See Ref A, 18 and Ref B, 10-11.

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What if the V principal applicant's name is not in Class or the CCD, but post has reason to believe they are eligible?
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6. If post is absolutely certain that the principal applicant's name does not appear in either CLASS or the CCD, and post has specific reason to believe that the applicant is eligible for a V, contact either NVC or post's regional officer in VO/F/P for assistance. Include applicant's name, known aliases, DPOB, priority date, case or receipt number. VO is not staffed to perform several dozen CLASS namechecks per week for overseas posts. To date, in almost all cases for which VO received inquiries from posts, V hits were found in CLASS or the CCD. Post should not tell the applicant to contact NVC for assistance.

7. If a derivative dependent's name is not listed in either database, post should adjudicate the case based on a demonstrated relationship to the principal alien, as it is otherwise not possible to confirm V eligibility of a derivative dependent, see paragraphs 4, 5 above.

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What are the CLASS hits for V applicants?
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8. List of V hits:

VS1: V-eligible spouse, NCIC namecheck complete

VS2: V-eligible spouse, fingerprints required because of an adverse NCIC namecheck.

VS3: V-eligible spouse, NCIC/Visas Hawk required. No namecheck done at NVC because of incomplete or missing biodata.

VS4: V-eligible spouse under 16, NCIC namecheck required through Visas Hawk if applicant appears after 16th birthday.

VCP1: V-eligible child principal applicant, NCIC namecheck complete

VCP2: V-eligible child principal applicant, fingerprints required because of an adverse NCIC namecheck.

VCP3: V-eligible child principal applicant, NCIC namecheck/Visa required. No namecheck done at NVC because of incomplete or missing biodata.

VCP4: V-eligible child principal applicant under 16, NCIC namecheck required via Visas Hawk if applicant appears after 16th birthday.

VCD1: V-eligible child derivative applicant, NCIC namecheck complete

VCD2: V-eligible child derivative applicant, fingerprints required because of an adverse NCIC namecheck.

VCD3: V-eligible child derivative applicant, NCIC namecheck/Visa required. No namecheck done at NVC because of incomplete or missing biodata.

VCD4: V-eligible child derivative applicant under 16, NCIC namecheck required via Visas Hawk if applicant appears after 16th birthday.

Note that VS-2, VS-3, VCP-2, VCP-3, VCD-2 and VCD-3 will be Category 1 codes that must be overcome before a visa can be issued. See reftel C.

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What is NVC's role in processing V visas?
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9. NVC sends a letter to potential V applicants to let them know that they are eligible to apply for a V visa, see reftels B and D. In the letter, applicants are instructed to contact (usually by telephone) the post in the district in which they reside to set up a V visa appointment. A post contact list is attached to NVC's letters. A similar letter is sent to the LPR petitioner.

10. NVC does the NCIC namecheck, results of which may be found in the CLASS V hit. Send a Visas Hawk to NVC if the V hit indicates the NCIC was not completed for an applicant, or if a derivative is not listed in CLASS and applies after his/her sixteenth birthday.

11. Note that neither NVC nor the Department can "add" V applicant names to CLASS. Posts may issue a V to an applicant without a CLASS hit provided the applicant appears in the CCD or post receives confirmation directly from the Department or NVC or the applicant is processed as a derivative of a principal who does appear in one of the databases as V eligible.

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Processing/Issuing V Visas
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12. In general, standard IV processing is followed, including NCIC namechecks, police certificates, pertinent birth/marriage/divorce/death certificates, and the IV medical exam minus the vaccination requirement. Applicants fill out the DS 156 NIV application form and the DS 3053 V Supplemental Application form. Note that no I-864 is required; when V applicants adjust in the United States with INS, they will need to present one at that time. Consular officers should not routinely require the I-134 AOS, and should only request one in exceptional cases when it is deemed necessary to overcome any lingering public charge considerations that cannot be cleared up though documents submitted by the applicant.

13. INS reports that some V applicants arrive with an IV-style packet of documents or a sheaf of documents bound together with a grommet. INS at POE does not want the packet or the documents when the V applicant enters the United States. INS does not need these documents until the applicant applies for a change of status. Posts should return all documents ungrommetted to the applicant and tell them to hand carry them when they enter the United States. Applicants must have the medical exam form in hand when they enter at POE.

14. VO and CDC have worked out procedures to alert INS at the POE to report to CDC the names and addresses of all V applicants diagnosed with Class A medical conditions or Class B tuberculosis. See Reftel F.

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What does post do with the IV file if a V is issued?
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15. Posts were originally instructed to keep an IV file at post after issuing a V in case an applicant in future chose overseas consular IV processing rather than an INS change of status. However, several posts have indicated that they prefer to return these cases to NVC given limited file space at most posts. Posts should immediately begin asking V applicants if they intend to process the change of status from V to LPR with INS rather than return to post to process the IV. If they choose INS, posts may return the file to NVC with a notation in the file that applicant has opted for future INS processing. However, if the applicant changes his/her mind and does prefer consular processing, post would then request the file from NVC and proceed with IV processing.

16. Posts must also note the file transfer in IV by making a case note and, on the case tab, selecting transfer. It is not necessary to actually choose an addressee from the global address list which appears, but the user may elect to e-mail the file to him/herself or save the file to a diskette. This will allow the file to be reloaded if an error is encountered. Since the NVC system is not designed to receive transfer cases from post, there is no point in actually transferring the case electronically. But using the transfer key in this manner prevents the IV system from generating termination letters in future. If the applicant later decides on consular processing, post would request the file again from NVC.

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Annotations on V Visas
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17. All V visas should be annotated with the priority date of the underlying I-130 petition.

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Limiting Visa Validity on V Age-Out Cases
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18. V visa validity can only extend up to the day before the 21st birthday of a child applicant. Applicants who will reach 21 before the allowed maximum validity of the V visa (ten years for most countries) must be given a visa with limited validity.

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K3 Visas
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Who is eligible for a K3 visa?
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19. A spouse of a U.S. citizen and unmarried children of that spouse may be issued K3/K4 visas. Note that an unmarried child of a U.S. citizen who is not also the child of a K3 is not eligible for K4 issuance; rather, the U.S. citizen must file an I-130 petition for IR2 status for his/her child, see Ref E, 32-33.

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How does a consular officer determine K3 eligibility?
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20. INS must approve an I-129F petition/K3 petition before post can process the K3. Post will receive approved I-129F petitions from INS via NVC by scanned e-mail, see Ref E, 7-14. As is the case for K1 fiancé petitions, consular officers are not delegated authority by INS to approve K3 petitions. Posts may, however, revalidate K3 petitions, which expire four months from the date of approval, for additional four-month periods, under the provisions of 9 FAM 48.81 N5.2.

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What about dependents of K3 applicants?
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21. U.S. citizens are not required to file a separate I-129F petition for a K4 unmarried child of the K3 spouse. A K4 applicant must only demonstrate that he/she is the unmarried child of a K3 applicant in order to qualify for issuance.

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What is NVC's role in processing K3 visas?
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22. NVC receives an approved I-129F/K3 petition from INS, performs the NCIC namecheck, and forwards the petition to the processing post by scanned e-mail. Posts must keep NVC informed of any changes in the e-mail address at post to which NVC is sending these cases. Send a Visas Hawk to NVC for any derivative at least 16 years old for whom no NCIC has been run. NVC also sends a letter to the U.S. petitioner to let him/her know the case has been forwarded to post.

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Processing/Issuing K3 Visas
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23. Standard IV processing is followed, including NCIC namechecks, police certificates, pertinent birth/marriage/divorce/death certificates, standard IV medical exam minus the vaccination requirement, and relationship bonafides, Ref E, 18-25. Unlike K1s and K2s, the IV system will not yet accept K3 as a visa class, and so the systems processing takes place exclusively in NIV. K3s must be issued in the country where the marriage took place, unless there is no IV or NIV issuing post in the country, see Ref E, 15-17. Applicants fill out two copies of the DS-156 NIV application form; they are not required to submit the new DS-157 form. Note that neither an I-864 or an I-134 is required; K3 applicants must present the I-864 when they adjust status in the United States with INS. Posts should not routinely require an I-134, except in those cases where the consular officer deems it necessary to overcome any public charge considerations that might arise from documents presented or the interview.

24. Unlike the V, and in the same manner as the K-1, K3 visas must be accompanied by a standard IV-style packet of documents, minus the affidavit of support. The K4's documents may be included in the K3's packet.

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Revocations of V and K3 cases
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25. The underlying I-130 petition for a V case is either in storage at NVC or pending approval in an INS office. To ask INS to reconsider the approval of a petition, post first needs to determine the location of the petition. Begin by requesting the I-130 IV file from NVC. If NVC has the file, post writes the usual revocation memo, attaches any available INS I-797, INS receipt number, IV case number and returns the file with the I-130 attached to the INS Missouri Service Center which handles all LIFE Act processing.

26. If NVC does not have the I-130 underlying petition for the V case, post may assume the case remains with INS. Post will write the usual revocation memo to INS with an explanation of why the I-130 is not attached, include a copy of any available I-797 or other documentation such as an INS receipt number, and send it to the Missouri Service Center.

27. To revoke a K3, post must obtain the original I-129F petition from NVC. Write the usual revocation memo with relevant attachments and send it to the Missouri Service Center.

28. Address of Missouri Service Center:

P.O. Box 648004
Lee's Summit, MO 64063

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Processing V Applicants Who Obtained a Change of Status to V from INS in the United States
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29. V eligible applicants may obtain a change of status to V from INS in the United States. They will receive an I-797 in which the case type in the upper right is marked "I-539, Application to Extend/Change NIV Status." V will be indicated after "Class." The notice informs the applicant that if they depart the United States, "he or she must obtain a new visa in the new classification before returning to the U.S." V status holders are unable to reenter the United States without obtaining a V visa.

30. Such applicants should be listed as V-eligible in Class or the CCD, and this would confirm the information on the applicant's presented I-797. If they are not listed, contact NVC or post's regional officer in VO/F/P for assistance. INS has no reason to forward the I-539 to NVC as the applicant would most likely continue to process with INS rather than with an overseas consular section. But applicants may opt for overseas consular V processing.

31. Such applicants must undergo standard V processing, including the medical exam, police certificate, and all the requirements in Reftels B and D. If the NCIC is not done, send a Visas Hawk to NVC.

32. It will be left to post to determine how to schedule these applicants for V processing, based on post's workload or other considerations.

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LIFE Legalization Applicants
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33. Aside from the provisions of the LIFE Act that created V and K3 visas, another section provides for legalization of those aliens who entered the United States before January 1, 1982 and who are registered as members of one of three class action lawsuits. INS has sole responsibility for determining eligibility of and processing these applicants. However, post may be asked to fingerprint an eligible applicant or his/her dependent that resides overseas. Instructions will follow septel.

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Future Role of Kentucky Consular Center (KCC) in V and K3 Processing
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34. In the near future, KCC will take over NVC's role in LIFE Act processing, and mailings to applicants and petitioners regarding V and K3 visas will originate from KCC. I-129F K3 petitions will be relayed to posts via KCC rather than NVC, and KCC will maintain the post contact list that is now sent out with each V letter to applicants and petitioners. V-related 2nd preference petitions will continue to be held at NVC. Further information on this change will be available septel.

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Who can help post?
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35. For legal issues concerning the LIFE Act, contact CA/VO/L/R. Any questions on visa processing, contact CA/VO/F/P. If you don't know how to use the CCD to check for V eligibility, contact CA/VO/F/S. For information on Visa Hawk or post receipt of K3 I-129F petitions by scanned e-mail, contact NVC.

36. Minimize considered.

POWELL