Keeping Your Place in Line: Challenging Unlawful Termination of Visa Petitions

By Attorneys Ben Loveman & Nancy E. Miller

CAJ0066BThis week we take a break from our recent focus on the new policies of the Trump Administration to look at a problem that has plagued thousands of would-be immigrants for decades. The practice of revocation of immigration visa petitions by Department of State and USCIS has resulted in many family members losing the chance to immigrate to the United States after waiting for decades for their visa to be available. The infuriating part of this story is that many of these revocations are probably unlawful. The good news is that there is a way to challenge unlawful revocations. Reeves, Miller, Zhang & Diza has been successful in obtaining reinstatement of revoked petitions. Before turning to the methods to attack revocations it is useful to see this problem in the larger context of the U.S. immigration system.

The U.S. system allows U.S. citizens and lawful permanent residents to file immigrant visa petitions on behalf of certain relatives. However, there is a cap on the number of visas that can be issued each year; this number is divided amongst the various categories of applicants and then subject to fixed caps for each country. Each year many more petitions are approved than there are visas available and so a long line, stretching decades in some cases, has developed. A person’s place in the line is determined by the date that the petition was filed which is known as the priority date.

When a visa cannot be issued immediately upon approval of the petition, the petition gets stored by Department of State (DOS) at a central repository. Whenever a visa becomes available, DOS is supposed to notify the beneficiary of the petition. The applicant then has one-year to respond and notify the authorities that they are interested in pursuing their visa. Where the applicant does not reply, DOS takes the position that it can terminate the visa petition which results in revocation of the petition and, most importantly, loss of the priority date. A person who has waited patiently for many years in hopes of immigrating to the United State to be reunited with their families can find themselves without a petition and needing to start over in the waiting process – assuming they don’t just give up out of frustration or despair.

It is tempting to see this situation as being the fault of the potential immigrant because they failed to act. In many cases the situation arises because the notification was not properly sent. Other times, the problem arises where the beneficiary sends the government notification of change of address but such change is not properly noted. However, whether or not the notification is sent or is received, the law may not actually allow authorities to revoke a petition simply because a person fails to respond. More simply put, 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.
Now the good news. There is a way to seek reinstatement of revoked petitions. The first route to request reinstatement from Department of State. It will be necessary to provide an explanation for why the potential immigrant did not respond to the notification and did pursue their visa when the notification was sent. This route can prove successful where it is pursued shortly after revocation and occasionally under other circumstances. However, where significant time has passed the only way to seek reinstatement may be to challenge the revocation in federal court.

There are generally two options for challenging revocations in court. The first would be 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. But an experienced immigration attorney will know how to address this issue. Where notification was properly sent the next argument will be to challenge the practice itself as unlawful. There is strong authority to suggest that there is no legal authority for the practice of revocation of visa petitions in this type of case. While no Court has had occasion to make a ruling on this issue, when RMZD attorneys have raised the argument, it has often resulted in an agreement between the government and RMZD attorneys to reinstate the visa.

The bottom line is this. You and your loved ones should not have to wait in line twice based on erroneous or unlawful revocation of a visa petition. If your visa petition was revoked for alleged failure to respond to notification, you should consult a knowledgeable and experienced immigration lawyer as soon as possible to see what can be done.