By: Attorney Ben Loveman
Termination of an immigrant visa petition has been harming long-waiting visa applicants for years. Here is the problem: a foreign national waits years (sometimes decades) for their priority date to become current so that they may immigrate to the United States, only to find out that the visa petition filed by their family member or employer has been terminated. In this instance, the foreign national may have to start over from the beginning, which includes potentially waiting several more years. The good news though is that, with the right immigration attorney, a solution is available.
Petitions for immigration benefits are filed with the U.S. Citizenship and Immigration Service. Following USCIS’ approval, the petition will be transferred to the National Visa Center so that the Department of State can ultimately issue the visa that is required to enter the U.S. Well, did you know that the Department of State can revoke the approved petition if the beneficiary of the petition has not taken sufficient action? It’s true, and this revocation could mean several more years of waiting.
The most frustrating aspect of this problem is that these revocations are not clearly authorized by law. In fact, we have been successful in having petitions reinstated that had been wrongfully revoked.
First, some background information: the wait for a visa to lawfully immigrate to the U.S. may be several years long due to visa quotas and per country limits. A person’s place in the line is determined by the date that the petition was filed. That date is known as the person’s priority date. When a person’s priority date is not current, the case is essentially on hold until a visa is close to being available. This is referred to as the priority date becoming current. At this time, the Department of State notifies the beneficiary of the petition that it is time to start the application process. The applicant then has one-year to respond and begin the process.
The Department of State’s position is that they may terminate the visa petition if the applicant does not timely reply. And this termination could cause the beneficiary to lose their priority date and be required to start over from the beginning, including a new petition and years more of waiting.
It is easy for the government to blame the applicant for failing to properly respond, or even for failing to properly update their address with the immigration authorities. But in many cases, the situation arises because the notification was not properly sent. And in other cases, termination occurs after the beneficiary does notify the government of their new address, only to have the government fail to properly process the new address.
Regardless, an argument can be made that the law does now allow a petition to be revoked simply because a person did not timely respond. In other words, despite the government’s practice of revoking petitions and sending people to the back of the decades-long line, there is likely no legal authority for such revocations.
Fortunately, there is a way to have these petitions reinstated. First, a person may request reinstatement from the Department of State. It will be necessary to provide an explanation for why the potential immigrant did not timely pursue their visa. This route is not always successful, especially when significant time has passed since the petition was revoked.
If the Department of State is unwilling to reinstate the petition, the beneficiary may then seek reinstatement by filing a lawsuit in federal court. The arguments made in federal court are dependent on the facts of each case. Is it possible to argue that the Department of State failed to send the required notification? Of course, the potential immigrant who never received a notification may not know if notification was even sent. However, an experienced immigration attorney will know how to research and address this issue. If notification was properly sent, the next step would be to argue that the act of revoking the petition was unlawful.
You and your loved ones should not have to wait in line twice because of the erroneous or unlawful revocation of a visa petition. If your visa petition was revoked for alleged failure to respond to notification, consult a knowledgeable and experienced immigration lawyer as soon as possible to discuss your options.
