DOS Advises on Timing of Commencement of Termination Procedures for Immigrant Visa Applications

-----Original Message-----
From: Alan Lee Esq. [mailto:immigration@alanleelaw.com]
Sent: Thursday, October 02, 2003 1:17 PM
To: legalnet@state.gov
Subject: Avoiding Termination of Registration

Dear Sirs:

I would appreciate your advice to as to what steps are necessary to preserve registration following receipt of a letter from the NVC notifying the applicant that a visa number is currently available.  According to the regulations, the applicant must apply for the visa within a one-year period to avoid termination. 22 CFR 42.83(a).   Is the one-year deadline met by sending in 1.) a request for information on applying for the immigrant visa, 2.) the fee bill, 3.) the packet 3 papers; 4.) by receiving the packet 4 papers, or 5.) appearing at the consulate or embassy for interview? (I apologize for using the old jargon of packets, but such is easier to understand.)

I am confused by what constitutes an "application" sufficient to ward off termination of registration.  Does the meaning of the word "application" change depending upon the context of the CFR section to which the term is applied? In a recent NVC notice dated July 10, 2003, to our law firm of notification that a visa number is currently available, the letter stated that

Failure to pursue your visa application by complying with the instructions below will commence proceedings to terminate your immigrant visa registration one year from the date of this letter.

To pursue your immigrant visa application and avoid termination of your registration, you must immediately notify the National Visa Center at the address on the next page. Upon receipt of your letter, the National Visa Center will send you information on applying for your immigrant visa. If you do not request information on applying for your immigrant visa within one year of the date of this letter, your immigrant visa registration will be terminated.

The Packet 4A notification letter that we received from the American consulate in Hong Kong on another case on August 28, 2002, stated that

To pursue your immigrant visa application and avoid termination of your registration, you must complete the following steps within one year:

(1)    Complete and return Form OF-230 Part I, Biographic Data, as soon as possible.
(2)    Obtain the documents applicable to your case listed in Forms I-864 and OF-169. (3)    Sign and return Form OF-169 when you have obtained the necessary documents. Do not send these documents to this office. Keep them to be presented on the day of your formal visa application interview.

Finally an HNK-37 form dated 3/95 stated that U.S. immigration law requires that we cancel your petition if you do not apply for a visa within one year. We have no discretion in extending the one year deadline - your petition will be canceled automatically if you do not apply. Merely returning your forms does not constitute an application. To apply you must appear for an interview, submit your biographic forms, and pay the application fee. There are no exceptions. You will not be able to immigrate to the U.S. once your visa petition has been canceled.

I believe that there is sufficient ambiguity to request your hopefully unambiguous advice.  Your timely response to my above question will allow me to give correct advice to my clients.  For example, I presently have a client who has received the notification of visa availability letter and has every wish to come to the United States, but wishes to qualify for an overseas pension which will take time to vest.  She realizes that it will be very difficult for her to immigrate in the future if she gives up this opportunity as she was applied for under the F-4 category and is willing to give up the pension if there is no choice, but ideally would like to be able to both obtain the pension and immigrate to the United States. 

 Thank you for your courtesy and kind attention.

Very Truly Yours,

Alan Lee, Esq.

----- Original Message -----
From: "Legal, Net" <LEGALNET@state.gov>
To: "Alan Lee Esq." <immigration@alanleelaw.com>
Sent: Thursday, October 02, 2003 9:07 AM
Subject: LegalNet Acknowledgment

Your email inquiry to the Department of State's LegalNet email address has been received.  Please allow 2-5 days for a reply.

Please note that inquiries regarding processing of immigrant visas should be sent directly to the National Visa Center (NVC).

If you have been informed by BCIS (INS) that your client's petition has been approved and forwarded to the Department of State, please contact the National Visa Center (NVC) directly.

If you are inquiring about payment of immigrant visa fees and affidavit of support fees, please contact NVC.

If your client has a new family member whom you wish to add on to his or her approved petition stored at NVC, please contact  NVC in writing providing petitioner and beneficiary's names and dates of birth, case number, receipt number, and copy of birth certificate.

To contact NVC you must call between 8:00am-3:45pm, M-F, eastern-time.  It may be easier to reach NVC during the morning.  Follow the prompts to speak with an operator. Tel: 603-334-0700.  You may also inquire via facsimile - Fax: 603-334-0791. 

You can learn more about the National Visa Center at http://travel.state.gov/nvc.html.

Thank you.

Visa Services
Department of State
Updated: June 2003

----- Original Message -----
From:
To: <immigration@alanleelaw.com>
Sent: Tuesday, October 07, 2003 12:53 PM
Subject: FW: Avoiding Termination of Registration

Dear Mr. Lee,

I think the short answer to your various questions would be to respond to the instructions you are getting from both the NVC and Post on their respective cases. The two cases were processed at different times, under different circumstances. Clearly, the NVC will be responsible for most new filings until further notice, with the exception of petitions accepted and filed at the various posts. However, Post already has the other case you are referring to and will process it under the previous procedures.   

The instructions from the NVC seem fairly clear.  The one year deadline is
met by sending in the request for information.  The 1995 instructions you've
referred to below are no longer in effect. I'm sure that most of the
ambiguity that you refer to will disappear once the cases already sent to
the posts have been processed and NVC takes responsibility for the new
filings.

----- Original Message -----
From: "Alan Lee Esq." <immigration@alanleelaw.com>
To:
Sent: Wednesday, October 08, 2003 10:39 AM
Subject: Re: Avoiding Termination of Registration

Dear Mr.        :

Thank you for your short answer to my question concerning the necessary
steps to take to avoid termination of registration where the Packet 4A letter signaling the applicant to apply for an immigrant visa has been sent by the NVC.  (Again kindly excuse my use of the old packet names as I find them easier to use than the new terminology).  Your advice was to follow the steps outlined in  the NVC letter - respond to the letter within the one-year period - and disregard the advice in old consular forms - one of which asked for the return of packet 3, and other demanding attendance at the interview.  Your reasoning was based upon the fact that the NVC is
responsible now for most new filings until further notice and not the consulates.

Is there any chance that, if I advise my clients in their "new filing" to follow the NVC Packet 4A instruction, they will be terminated from registration for taking no further steps within the one year period? For example, in the example I gave for the individual wanting to hold off immigrating as long as possible in order for her overseas pension to vest but willing to immigrate now if necessary to preserve the F-4 sibling case, suppose that she just sends in the requested information indicating that she still wishes to pursue her immigrant visa application and for the NVC to send information on applying for her immigrant visa, and then receives the next papers from the NVC consisting of the fee bill.  If she does not send in the fee bill within the one year, will she be terminated? If she sends in the fee bill and receives the packet 3, and does not return the packet 3 papers within one year, will she be terminated? If she receives the packet 4 and does not attend the interview within one year, will she be terminated?

Or is the process that, if she sends back the information in response to the
packet 4A that she still intends to immigrate but sits on the fee bill, the NVC will then send her another reminder at the end of the year that she must take further steps, eg. - send in the fee bill to preserve her registration?

Your answer to the above would be greatly appreciated.

Very Truly Yours,

Alan Lee, Esq

----- Original Message -----
From: "Alan Lee Esq." <immigration@alanleelaw.com>
To:
Sent: Friday, October 31, 2003 3:45 PM
Subject: Avoiding Termination of Registration

Dear Mr:

I received your response to a previous email on October 7, 2003 and asked the following follow-up. Kindly review these questions. Your reply would be appreciated.

I had asked about the procedures for packet return and fee bills and your response was to follow the steps outlined in the NVC letter to avoid termination. The following is very relevant to many clients:

Is there a chance that, if I advise my clients in their “new filing” to follow the NVC Packet 4A instructions, they will be terminated from registration for taking no further steps within a one year period? For example, in the example I gave for an individual wanting to hold off immigration as long as possible in order for her overseas pension to vest but willing to immigrate now if necessary to preserve the F-4 siblings case, suppose that she just sends in the requested information indicating she still wishes to pursue her immigrant visa application and for the NVC to send information on applying for her immigrant visa, and then receives the next papers from the NVC consisting of the fee bill. If she does not send in the fee bill within one year, will she be terminated? If she receives Packet 4 and does not attend the interview for one year, will she be terminated?

Or, is the process that, if she sends back the information in response to the Packet 4A that she still intends to immigrate but sits on the fee bill, the NVC will send her a reminder at the end of the year that she must take further steps e.g. – send in the fee bill to preserve the registration?

I look forward to your reply.

Thank you again.

Very truly yours,

Alan Lee, Esq.

----- Original Message -----
From:
To: <immigration@alanleelaw.com>
Sent: Tuesday, October 07, 2003 12:53 PM
Subject: FW: Avoiding Termination of Registration

Mr. Lee,

Under the current procedures, the NVC sends out a follow-up letter if it fails to receive a response within a year. It will send out a termination letter (T-1) if it fails to receive a response within a year after the second letter.  nce the T-1 letter is sent, the post must agree to reinstate the case in order to reopen it. If nothing is received within a year after the T-1 letter is sent, a T-2 is sent and the petition is invalidated. At that point, only a new filing would allow the beneficiary to immigrate.

So, it is possible to receive the fee bill and wait 11 months to pay, and then wait another 11 months after receiving the packet 4 and then respond.  If your client waits too long and receives a T-1, then they will be dependent on the kindness of the issuing post to reopen the case. Only a T-2 letter truly terminates the petition.

----- Original Message -----
From: "Alan Lee Esq." <immigration@alanleelaw.com>
To:
Sent: Tuesday, November 4, 2003 12:33 PM
Subject: Re: Avoiding Termination of Registration

Dear Mr.       

Thank you for your response of November 3, 2003, clarifying that our client could possibly receive the fee bill and wait 11 months to pay and then wait another 11 months after receiving packet 4 before responding.  In my haste to follow-up on our previous correspondence, I left out one part of my October 8, 2003, inquiry to you on my October 31, 2003 follow-up - that if our client sends in the fee bill and receives packet 3 and does not return the packet 3 papers within one year, will she be terminated? I assume that your answer would be the same that our client could possibly wait 11 months before sending back the packet 3 to the NVC, but I would appreciate your confirmation of this scenario.  This is important inasmuch as our client would not like to chance 11th-hour responses and if our client can space out responding to the NVC and later the consulate in three steps instead of two, then the chances of termination would be greatly lessened.  Your kind response to my further inquiry would be appreciated. 

Very Truly Yours,

Alan Lee, Esq.

----- Original Message -----
From:
To: <immigration@alanleelaw.com>
Sent: Tuesday, October 07, 2003 12:53 PM
Subject: Re: Avoiding Termination of Registration

Dear Mr. Lee,

Yes, you are correct, my answer would remain the same. There is a 12 month response period for each stage before termination procedures begin. I would say in general, that there is always some inherent risk in running out the clock to the last possible moment. You have to presume that everything will go forward as it should, and it doesn’t always.