Termination of Immigrant Visa Registration

 

Introduction: Termination of Immigrant Visa Registration

Termination of Immigrant Visa RegistrationUnder certain circumstances, the Department of State (DOS) has the authority to terminate an immigrant visa registration and revoke the underlying immigrant visa petition. In general, the termination of immigrant visa registration will occur when an applicant with an approved immigrant visa petition fails to follow through by making an application for an immigrant visa within one year of receiving notice that an immigrant visa number is available, or when the applicant fails to attempt to overcome the ground(s) for a visa refusal in a timely manner.. The termination of immigrant visa registration provisions exist in recognition of the fact that the DOS is responsible for keeping track of the number of available visas and managing the applications for such visas.

In this article, we will examine the applicable statutes, regulations, agency guidance, and judicial precedent regarding the termination of immigrant visa registration.

Statutory and Regulatory Background

Statutes

The main provision for the termination of immigrant visa registration is found in section 203(g) of the Immigration and Nationality Act (INA). Section 203(g) requires the DOS to make reasonable estimates of the number of available visas to be issued in any quarter of the current fiscal year.

In accordance with the DOS's responsibilities in managing the allocation of available immigrant visas, the statute requires the Secretary of State to “terminate the registration” of an alien who fails to apply for an immigrant visa within one year following notification of the availability of an immigrant visa. It is important to note that, because the statute states that the Secretary “shall terminate,” this decision is not discretionary. However, the statute provides for an exception if the alien establishes within two years of having received notification that an immigrant visa is available that his or her failure to apply within one year was due to circumstances beyond his or her control.

If an alien is refused an immigrant visa under section 221(g) and fails to submit evidence to overcome the grounds for refusal within one year of receiving the refusal notice, his or her visa registration will be terminated. We will explore this means for visa termination more in the sections of this article on the regulations and the guidance in the Foreign Affairs Manual (FAM). Please see our full article on visa refusals and avenues to respond to learn about that subject in detail [see article].

Under section 221(i), the DOS may revoke the underlying immigrant visa petition or other documentation for an alien who had his or her visa registration terminated under section 203(g) or 221(g).

Regulations

The statutes regarding the termination of visa registration are primarily governed by DOS regulations found in title 22 of the Code of Federal Regulations (C.F.R.).

22 C.F.R. 42.43 sets forth the grounds for the suspension of action and the termination of action in visa petition cases.

First, 22 C.F.R. 42.43(a) explains that a consular officer shall suspend action on a visa petition case and return the petition with a report of the facts for reconsideration by the Department of Homeland Security (DHS) if:

  • The petitioner requests suspension of action; or
  • The consular officer knows or has reason to believe that the petition was approved because of fraud, misrepresentation, or other unlawful means, or that the beneficiary of the petition is not otherwise entitled for the status that he or she was approved for.

Under 22 C.F.R. 42.67(b), an alien will be considered “registered” for purpose of section 203(g) either upon the filing of a duly executed Form DS-230 or Form DS-260, or, most pertinent to this article, upon the transmission by the DOS to the alien of a notification of availability of an immigrant visa (whichever comes first).

22 C.F.R. 43(b) lists the two grounds for the termination of action on an immigrant visa petition case:

  1. The DHS revokes the petition in accordance with DHS regulations; or
  2. The immigrant visa registration is terminated under section 203(g) and the accompanying regulations in 22 C.F.R. 42.83.

To that effect, the primary regulations for the termination of immigrant visa registration are found in 22 C.F.R. 42.83. The regulations list all of the scenarios in which the termination of registration occurs. We will paraphrase them in the following list:

  • a. The immigrant visa registration shall be terminated in accordance with section 203(g) of the INA for an alien's failure to apply for an immigrant visa within one year of receiving notification that an immigrant visa is available.
  • b. The immigrant visa registration shall be terminated if the alien is refused an immigrant visa under section 221(g) and fails to present evidence to a consular officer to overcome the basis for refusal.

22 C.F.R. 42.83(c) contains the regulations regarding the rules for providing notice of the termination of immigrant visa registration. Under the regulation, notice of termination is provided by the National Visa Center (NVC). The notice will include an explanation for how the alien may seek to have his or her immigrant visa registration reinstated:

  • Failure to appear cases-The alien must establish, within two years of having received notice that an immigrant visa is available, that his or her failure to apply for an immigrant visa was due to circumstances beyond his or her control.
  • Refusal cases-The alien must establish, within two years of having received notice of termination for failure to present evidence to overcome a visa refusal, that his or her failure to present such evidence was due to circumstances beyond his or her control.

Under section 22 C.F.R. 42.83(d), if an alien satisfies the requirements found in 22 C.F.R. 42.83(c) for having his or her immigrant visa registration reinstated, the consular officer shall reinstate the alien's registration for an immigrant visa. Furthermore, an immigrant visa petition under section 204(b) of the INA that was automatically revoked due to the termination of immigrant visa registration will be considered to be automatically reinstated upon the reinstatement of immigrant visa registration.

22 C.F.R. 42.83(e) defines the term “circumstances beyond alien's control” for purpose of the reinstatement of a terminated immigrant visa registration. The regulation provides the following examples of occurrences that may meet the standard:

  • Illness or physical disability preventing the alien from traveling;
  • Refusal by the authorities of the country of the alien's residence to grant the alien permission to depart as an immigrant;
  • Foreign military service; and
  • Other reasons not included that may rise to the standard of “beyond the alien's control.”

Under DHS regulations found in 8 C.F.R. 205.1, an approved immigrant visa petition or self-petition made under section 204 of the INA is automatically revoked if the registration of the petition beneficiary or self-petitioner is terminated under section 203(g) of the INA. 8 C.F.R. 205.3 specifies that the revocation will only apply before the beneficiary or self-petitioner commences his or her journey to the United States or before he or she completes the adjustment of status process (if applying for adjustment from inside the United States).

Guidance in the Foreign Affairs Manual

The FAM provides guidance to consular officers based on the applicable statutes and regulations. The FAM chapter on the termination of immigrant visa registration is found in 9 FAM 504.13 [link]. The FAM offers deep insight into the current procedures for immigrant visa registration termination because it references the specific policies and forms that are currently in use by the DOS.

Where and When Visa Registration Termination Applies

9 FAM 504.13-2(A) explains that an alien becomes liable for termination under section 203(g) of the INA when his or her case becomes “inactive.” The FAM goes on to list the scenarios in which a case may become inactive and place an alien in danger of having his or her immigrant visa registration terminated under section 203(g) (paraphrased):

  1. The alien has not applied for an immigrant visa within one year of receiving the Immigrant Visa Appointment letter or other notice of visa availability. Under section 203(g), the alien has one year to apply for a visa beginning on the date that the Immigrant Visa Appointment letter is mailed to the alien.
  2. The alien fails to respond to the appointment notice included with the Immigrant Visa Appointment Package, meaning that the alien fails to appear for the visa application interview on the scheduled appointment date and subsequently fails to take further action on the case within one year of the missed interview.
  3. The alien is refused a visa at the immigrant visa interview under section 221(g) of the INA and subsequently fails to present evidence purporting to overcome the basis of refusal within one year of the refusal.
  4. The alien fails to comply with the Follow-up Instruction Package for Immigrant Visa Applicants within one year.

The FAM guidance clarifies how section 203(g) is implemented by explaining that an applicant may take initial action to make an immigrant visa application but subsequently cause action on his or case to be suspended by failing to follow the subsequent steps involved in applying for an immigrant visa.

9 FAM 504.13(A) explains who may be subject to the provisions of section 203(g). The section 203(g) procedures apply to applicants who are immediate relatives, family-sponsored immigrants, and employment-based immigrants who have received notification that an immigrant visa is available.

9 FAM 504.13(B) lists the situations in which section 203(g) does not apply:

  1. If an applicant is in a category for which there are no immigrant visa numbers available and if an applicant is in a limited-duration program.
  2. If an applicant who was initially refused a visa under section 221(g) makes a credible assertion that documentation to overcome the ground(s) for refusal was not available within one year.
  3. If the applicant is the beneficiary of multiple approved immigrant visa petitions, the revocation of immigrant visa registration only applies to any petition for which the beneficiary failed to make a timely application. The termination of one registration does not bear on other petitions for the same beneficiary.
  4. If a beneficiary has his or her petition revoked under section 203(g) and subsequently has a new petition filed by the same petitioner, the priority date for the original petition that was revoked would be invalid.
  5. If an applicant is following to join the principal.

Notification

9 FAM 504.13-2(B)(1) lists the notification requirements for indicating that an alien is at risk for termination of immigrant visa registration.

Under the guidance, the DOS is required to send a “follow-up package” including notification of possible termination of registration when an applicant fails to respond to the instruction package for immigrant visa applicants within one year. If the applicant's immigrant visa priority date (the date on which he or she is formally eligible to apply for/receive a visa) has not been reached on the date of the one-year anniversary of the sending of the instruction package, the FAM instructs consular officers to wait to send the follow-up package until the date on which the applicant's priority date is reached.

A consular officer may choose to initiate the termination process by mailing a notice of possible termination of registration. In the alternative, a consular officer may send an instruction package that includes such notice. If the applicant responds to either of these mailings by indicating that he or she does not want registration to be terminated, the consular officer should send the follow-up package.

The FAM explains that the follow-up package includes the following:

  • a. Notice of Possible Termination of Registration;
  • b. Form DS-2001, Notification of Applicant Readiness; and
  • c. Instructions for accessing Form DS-260, Online Application for Immigrant Visa and Alien Registration.

The applicant may respond to the Notice of Possible Termination of Registration by indicating that he or she intends to pursue the immigrant visa application with the understanding that he or she will have to resubmit all of the required fees and documents in order to continue with immigrant visa processing. In the alternative, the applicant may indicate that he or she does not want to pursue the immigrant visa application while providing one of the following reasons:

  • i. Has adjusted status;
  • ii. Has received an immigrant visa through another petition;
  • iii. Is no longer interested in immigrating to the United States;
  • iv. Other (with explanation).

If the applicant indicates that he or she intends to pursue an immigrant visa and returns the Form DS-2001 and Form DS-260, the consular officer must process the applicant's application in the same manner as any other applicant who responds to the instruction package for immigrant visa applicants. If the applicant sends the response to the NVC, the NBC will begin the process of collecting the requisite forms and fees.

Extensions and Termination

9 FAM 504.13-2(C) explains that in failure to appear cases, the DOS treats the end of the one-year period from the date of notification that an immigrant visa is available as a “mandated cut-off date.” Accordingly, a missed interview is not, in and of itself, cause for halting the immigrant visa application process. If the applicant establishes that he or she missed an interview for reasons beyond his or her control, the one-year period will begin anew upon the mailing of a letter setting a new appointment date. For section 221(g) cases, the one-year period is extended each time the applicant presents evidence reasonably purporting to overcome section 221(g) ineligibility. The language of this guidance makes clear that the submission of evidence that does not reasonably purport to overcome a ground for visa refusal will not extend the one-year period for section termination of registration purposes.

Under 9 FAM 504.13-2(D), if one year elapses without a request for reinstatement or the submission of evidence to overcome a ground if refusal, a Notice of Termination of Registration (Termination 1 letter) will be sent to the applicant. If the applicant fails to or declines to attempt to establish that a reasonable basis for the reinstatement of registration exists within one year of the mailing of the Termination 1 Letter, the DOS will mail a Final Notice of Cancellation of Registration Letter (Termination 2 letter).

You may find samples of the Termination 1 letter and Termination 2 letter in 9 FAM 504.13(E)(1) and (2) respectively [link].

Reinstatement Rules and Procedures

9 FAM 504.13-3(A) explains that if the applicant establishes within one year of the mailing of the Termination 1 letter that his or her failure to appear was beyond his or her control, the applicant is entitled to a new appointment to apply for an immigrant visa. The date of the new appointment will start a new one-year “timely application” period. The FAM makes explicit that the applicant's failure to have notified the DOS of a change in address will not qualify as a “reason beyond” his or her control for purpose of reinstatement.

9 FAM 504.13-3(B) explains that if the application and petition are reinstated, the DOS will request a visa number if the priority date is current. If the applicant is not yet documentarily qualified, the DOS must give the applicant a new Instruction Package and update the automated immigrant visa processing system to reflect the new information.

Documents in Terminated Cases

9 FAM 504.13-4(A) explains that when a case is formally terminated (with the mailing of a Termination 2 letter), the NVC must take the following actions:

  1. Notify the petitioner/applicant that the petition was revoked under section 203(g);
  2. Destroy the petition and any associated copies of supporting documents;
  3. Return the labor certification to the prospective employer (if applicable); and
  4. Return any original documents to the petitioner or to the beneficiary or agent.

Administrative and Judicial Precedent

In the Matter of Zaidan, 19 I&N Dec. 297 (BIA 1985) [PDF version], the Board of Immigration Appeals (BIA) held that it lacked the authority to review decisions regarding the automatic revocation of an immigrant visa petition under the then-existing version of 8 C.F.R. 205.1. Because this decision is precedent and has not been subsequently called into question, it remains good law today.

In Park v. Gonzales, 450 F.Supp.2d 1153 (D. Or. 2006) [PDF version], a Federal District Court upheld the termination of an immigrant visa registration under section 203(g), the destruction of the underlying immigrant visa petition by the DOS, and the subsequent revocation of the underlying immigrant visa petition by the DHS in upholding the denial of an application for adjustment of status. The District Court found that 8 C.F.R. 205.1(a)(1) is a permissible interpretation of the underlying statutes, and that Congress places the burden upon the alien for pursuing an immigrant visa application.

In Singh v. Clinton, 618 F.3d 1085 (9th Cir. 2010) [PDF version], the Ninth Circuit reversed the termination of immigrant visa registration under section 203(g) in a case where the DOS only sent notice of the alien's eligibility for a visa to the petitioner and to the attorney who assisted in the preparation of the petition. The Ninth Circuit noted that under 22 C.F.R. 42.67(b), an applicant for a visa is not considered “registered” until he or she (in this case the beneficiary himself) is sent notification of the availability of a visa.

Conclusion

In applying for an immigrant visa, it is important to respond in a timely manner when an immigrant visa becomes available. As this article explains, the failure to respond to notice that an immigrant visa is available for one year, or the failure to respond after missing an appointment for one year, may result in the termination of the alien's registration. Furthermore, if an alien is refused an immigrant visa, it is essential that he or she expeditiously work with an immigration attorney to prepare evidence to endeavor to overcome the ground for refusal if he or she intends to pursue the application.

If an alien intends to apply to have a terminated registration reinstated, he or she should consult with an experienced immigration attorney in order to determine whether there is evidence to demonstrate “circumstances beyond his or her control.” In general, having an experienced immigration attorney to assist with the immigrant visa application process will go a long way toward keeping an immigrant visa applicant on track for meeting all of the application requirements in a timely manner.