Good News for V Dependents in Ninth Circuit!
Posted Nov 05, 2004
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The U.S. Court of Appeals for the Ninth Circuit issued a decision October 5, 2004, in the case Akhtar v. Burzynski, addressing the issue of whether children on V visas "age out" of the V visa category the day prior to their 21st birthdays. The case strikes down the USCIS regulation that terminates V status and eligibility on the day before the V visa holder's 21st birthday. At the present time, however, the benefit of this ruling is limited to cases in the following states that fall within the Ninth Circuit's jurisdiction: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Marianas Islands, Oregon, and Washington.
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V nonimmigrant status was created on December 21, 2000 as a result of legislation known as the Legal Immigration and Family Equity Act (LIFE) Act. The MurthyBulletin reported on this development in our January 14, 2001 article, More Details on New "V" Visa and Expansion of "K" Fiance/e, available on MurthyDotCom. The V visa is for a very limited group of spouses and minor children of permanent residents (known in the green card quota system as Family 2A beneficiaries), as explained below. The V visa is for those Family 2A beneficiaries who had I-130 petitions filed on their behalf on or before December 21, 2000, and who have been waiting for three years or longer for their priority dates to become current. Eligibility for V status allowed the spouses and their dependents to apply for the V visa to join a permanent resident relative in the United States while waiting for the priority date to become current in the future. These V visa holders are also granted employment authorization in the U.S. and are protected from removal (previously known as deportation) for having failed to maintain their legal status in the United States before becoming eligible for V status.
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When legacy INS issued regulations to implement the V visa portion of the LIFE Act, the regulations stated that V visa holders "will be granted a period of admission not to exceed 2 years or the day before the alien's 21st birthday, whichever comes first." The problem encountered by many minor children has been that, when their 21st birthdays arrive, either their petitions have not been approved or the Priority Date for an immigrant visa is still not current. Because of the Service's rule ending V status on the date before a child turns 21 years old, many minor children effectively are deprived of this V status or visa benefit. The Ninth Circuit held that the regulations must be in keeping with the law that they implement. They should simply be more specific and clarify minor details, interpretations and procedures. However, they cannot change the law that they are designed to implement.
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The Court in this case found that the regulation was not in keeping with the LIFE Act. The LIFE Act, which created the V status, says V status will end if: (1) the immigrant petition (I-130) filed is denied, (2) if the immigrant visa application filed (at a U.S. Embassy abroad) because of the I-130 approval was denied, or (3) if the adjustment application filed because of the I-130 petition approval was denied. The federal court concluded that, because the U.S. Congress listed only these three ways that V status can be terminated, the Service went beyond its authority in creating a fourth way for V status to end upon a V dependent's reaching 21 years of age, and held that the regulations are not enforceable.
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This case will help many who relied on the V visa to enter the United States and live with their U.S. relatives until the priority dates become current for the Family-based 2A category. It should also be of benefit if other jurisdictions use this case to influence other courts in a similar fashion. It is likely that the USCIS will appeal this decision. We at The Law Office of Sheela Murthy, P.C. will update MurthyDotCom and MurthyBulletin readers with new developments as they occur.
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