MAKE SURE YOUR VISA REGISTRATION ISN'T TERMINATED BY THE EMBASSY

by Michael J. Gurfinkel, Esq.

Dear Atty. Gurfinkel:
Years ago, I was petitioned by my U.S. citizen father. The priority date is current, but our family has not received any papers in connection with my visa.

During the many years that I was waiting for the visa, I and my father in America moved, and we are no longer living at the addresses we were at when the petition was filed.

I am very anxious to go to America, and I am wondering what is going on with my case.

Very truly yours,
F.T.

Dear F.T.:
People should realize that an immigrant visa is like a seat on an airplane: Although you may have made your "reservation" for the seat, if you do not claim that seat within a specific period of time, the airline will cancel your reservation, and give the seat to the next person in line. The same is true for immigrant visas: Once a visa is available to a person (i.e. priority date is current, and the Embassy or NVC has sent notification), the person must come forward and pursue his visa application. If he does not do so, the Embassy could take steps to terminate the visa registration.

There are a number of ways by which a person could risk having his visa registration terminated:

An alien who has not made an application for a visa within one year after the Packet 4 letter is mailed to them, is considered not to have made timely application for a visa, and visa registration will be terminated by the Embassy.

If a visa applicant has been requested by the Consul to present additional evidence to prove his eligibility for a visa, but he fails to submit that evidence within one year of the Consul's request, the visa registration is considered to have been terminated. For example, a person may go to the U.S. Embassy for interview, and the Consul gives them a form (called an MNL-IV-22) requesting that, under Section 221(g), the person must bring additional documents, such as a birth certificate, marriage contract, proof of family relationship, etc. If the person failed to submit that evidence requested by the Consul within one year, the visa registration could be cancelled.

The one year period (in which to pursue the visa and/or provide additional evidence) stops if the alien, at any time within that one year period (commencing with the date of the mailing of the Packet 4), is able to convince the Consular Officer that the alien's initial failure to appear for an interview "was beyond his or her control". Even after that initial one-year period has ended, if the Applicant is able to persuade the Consular Officer within the next year that the failure to appear within the first year was beyond the Alien's control, the Applicant could possibly be entitled to another appointment. (So, a person could, potentially, have up to two years to salvage their case.)

The Alien is required to provide the Embassy (or the National Visa Center) with the Alien's current address. Failure of a visa applicant to receive the Embassy's Notice of Termination, due to the Alien's change of address (of which the Embassy was not informed), will not be considered as a "reason beyond the applicant's control" for not pursuing the visa application. In other words, if you change your address, and do not notify the Embassy of the new address, the Embassy will continue mailing papers to your old address. If you do not receive the Embassy's notices (because you had moved and did not notify the Embassy), then it is your fault, and the Embassy will not consider that "beyond your control", as it clearly was within your control to keep the Embassy advised of your current address.

Therefore, if a person's priority date on their petition has been current for a long time, but they (or their relatives in America) have not received anything from the Embassy and/or National Visa Center, they should consider taking steps to make sure that their case is still "alive". In such a case, people may wish to seek the advice or assistance of a reputable attorney, who can analyze the situation, find out the current status of the case, and, hopefully, salvage the situation before it's too late. The Embassy will not keep cases open indefinitely. Either you are interested in the visa, or you are not. Remember, there are plenty of "stand by" passengers in line for visas, who are definitely interested in pursuing their own visa applications.