By Attorneys Steven J. Malm and Nancy E. Miller
Under United States immigration law, a beneficiary’s failure to act on a current immigrant visa petition carries harsh consequences. Namely, if following notification of the availability of the visa, the beneficiary fails to apply within one year, the Department of State terminates the beneficiary’s visa registration and the petition is automatically revoked. Occasionally, the revocation process occurs without proper notice to the beneficiary and consequently is contrary to law. Here, all hope is not lost.
In general, the revocation of abandoned visa petitions furthers the orderly administration of our nation’s visa system. Visa petitions can take years and even decades after approval to become current. In that time, circumstances change for petitioners and beneficiaries. Petitioners may no longer wish to sponsor beneficiaries. Conversely, beneficiaries may no longer wish to immigrate. The law intends to erase the backlog of presumably unwanted petitions.
However, too often beneficiaries experience revocation by default, and not by choice. To avoid revocation, beneficiaries should maintain current contact information with the National Visa Center (NVC). Alternatively, they should designate a representative they trust to receive communications from the NVC. Often this will be an attorney, but could be a family member or friend. They should also monitor the Department of State’s monthly visa bulletin to track the visa petition’s priority date. That way they will not need a notice to tell them when the petition is current.
A limited exception exists to automatic revocation where the failure to apply comes as a result of circumstances beyond the beneficiary’s control. These include, but are not limited to, illness or physical disability preventing travel, refusal of the beneficiary’s country to permit travel, and foreign military service. The exception must be claimed within two years of the original notification of visa availability—in other words, within one year after revocation was authorized by law.
Where this exception does not apply, the revocation decision should be analyzed according to the law. The law authorizing revocation specifies that the notice of availability of the visa petition must go to the alien, i.e. the beneficiary. When the beneficiary does not receive such notice, various relief options may be, but are not necessarily, available.
Overcoming revocation presents a challenge. The beneficiary’s representations that he or she did not receive notice will be viewed skeptically as self-serving. Thus, attempts at overcoming revocation should include evidence of how and why the beneficiary did not receive notice. Even recovering evidence that a visa petition once existed can be problematic. Former attorneys or other family members may need to be consulted. Freedom of Information Act (FOIA) requests to various agencies may be needed to yield evidence of the petition.
In addition to presenting argument and evidence that revocation was unlawful, the petitioner may need to work with USCIS to reconstruct the revoked immigrant visa petition. Alternatively, a new petition may need to be filed along with a request to recapture the earlier priority date. Recapturing the earlier priority date is not permitted when the earlier petition was properly revoked; but, this provision should not apply if revocation was improper. If CIS wrongly insists that the revocation was proper, the petitioner and/or beneficiary can seek a legal opinion from the legal advisors to the Department of State as to the propriety of the revocation.
Finally, a lawsuit in district court may be available. When notice goes to the petitioner, attorney, or possibly even an old address for the beneficiary, the beneficiary has not received notice as, strictly-speaking, required by law. The merits of any lawsuit depend on a variety of factors. Sympathetic facts do help, but under no circumstances would a lawsuit be proper where the beneficiary received proper notice, was legally and physically able to act and failed to do so. Note that many decisions made by the Department of State cannot be reviewed due to a doctrine called consular non-reviewability. This means that discretionary acts made by consular officers are not reviewable by a court. However, revocation represents an action over which the Department of State has no discretion, so this bar to review should not apply.
Petitioners and beneficiaries should keep track of the progress of their priority dates and begin to act as soon as the dates are current. If revocation occurs, petitioners and beneficiaries face a great challenge in attempting to resuscitate any petition. However, relief options do exist and petitioners and beneficiaries faced with revocation need not blindly accept revocation as their fate. They should immediately seek the advice of an experienced and knowledgeable immigration attorney to help them achieve their goal of living lawfully in the United States.