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May 29, 2006
You Could Lose Your Visa if You do not Pursue your Case
- Atty. Michael J. Gurfinkel Email this article

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, both my father and I 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.,

 

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 application/registration.  In that case, you lose your priority date, and have to start all over again.  Meaning, a new petition will have to be filed on your behalf by your petitioner with a new priority date.

 

There are a number of ways by which a person could have his visa application/registration terminated:

 

 

1.                  An alien did not “apply” for his visa within one year after his immigration-related papers are mailed to him would not have made a timely application for a visa, and may be considered to have abandoned his application.

 

2.                  If the Consul asks the applicant, at the interview, to present additional evidence or documents to prove his eligibility for a visa, but he fails to submit that evidence within one year of the Consul’s request, the visa application/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 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 application/registration could be cancelled.

 

3.                  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, 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.)

 

4.                  The Alien is required to provide the Embassy (or the National Visa Center) with the Alien’s current address, even if they move.  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.  Also, a change of address form given to the post office is not enough.  You need to notify the NVC or Embassy.

 

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 visa application or petition 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 hold your visa application indefinitely once your priority date becomes current.  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.

 

Michael J. Gurfinkel has been an attorney for over 25 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.  He has always excelled in school:  Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. 

 

WEBSITE:                www.gurfinkel.com

 

Four offices to serve you:

 

LOS ANGELES:          219 North Brand Boulevard, Glendale, California 91203

                             Telephone: (818) 543-5800 

 

SAN FRANCISCO:      966 Mission Street, San Francisco, California 94103

                             Telephone: (415) 538-7800

 

NEW YORK:              60 East 42nd Street, Suite 2101, New York, NY 10165 

                             Telephone: (212) 808-0300

 

PHILIPPINES:            Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines 1227

                             Telephone: 894-0258 or 894-0239

 

(This is for informational purposes only, and reflects the firm's opinions and views on general issues.  Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.  No prediction, warranty or guarantee can be made about the results of any case.  Should you need or want legal advice, you should consult with and retain counsel of your own choice.)


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