NVC Sending Letters to Correct Erroneous Form I-130 Denials

On January 26, 2016, the American Immigration Lawyers Association (AILA) reported that the Department of State's (DOS's) National Visa Center (NVC) has begun sending letters to immigrant visa applicants who were erroneously sent termination letters under section 203(g) of the Immigration and Nationality Act (INA) notifying them that their cases have not been terminated. The issue stemmed from immigrant visa applicants who had a Form I-601A, Application for Provisional Unlawful Presence Waiver pending with United States Citizenship and Immigration Services (USCIS), but received a denial based on having made no contact with the NVC within one year.

In addition to explaining that the case is not terminated, the letters will inform the applicants that they will have one year after the approval of the Form I-601A to contact the NVC and continue processing the case. Because the cases were never terminated, no new fees will be required.

If an applicant or his or her attorney believes that a case was erroneously terminated, but receive no letter within thirty days, the attorney should follow up with the NVC.

Explanation of the Issue

The relevant excerpt of section 203(g) reads as follows:

The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien's control.

The erroneous 203(g) denials stemmed from immediate relative immigrant visa applicants who had filed a Form I-601A. The letters were generated in cases where the NVC had received no contact from the immigrant visa applicant or his or her attorney within one year, but where the immigrant visa applicant had a Form I-601A waiver pending with USCIS. The NVC confirmed to AILA on September 9, 2015, that it considers the USCIS processing of the Form I-601A to be a valid form of “contact” that should prevent a section 203(g) termination letter. Accordingly, the NVC stated that the one-year clock should reset when the provisional unlawful presence waiver is approved or denied.

Because different administrative agencies often handle different components of the same overall immigration process, complications such as this can arise. In this case, the systems at NVC, which is part of DOS, did not account for the Form I-601A, which was being processed by USCIS under the umbrella of the Department of Homeland Security (DHS). Fortunately, the NVC appears to be moving to resolve the issue for those who were erroneously issued termination letters under section 203(g).

To learn more about provisional unlawful presence waivers, please read our full article [see blog].

Resources and Materials:

“Practice Alert: NVC Letters Indicating Possible Termination of Immigrant Visa Applications,” (Jan. 26, 2016), available at AILA InfoNet at Doc. No. 15073009