By Charles Wheeler
In order to apply for the provisional waiver for unlawful presence, the immigrant visa applicant cannot have been scheduled for a consular interview before January 3, 2013. The USCIS will review the Department of State (DOS) database to determine the date on which DOS acted to schedule the interview; it is the date of scheduling and not the date of the interview that controls. A prospective provisional waiver applicant cannot cure ineligibility simply by canceling a previously scheduled consular interview and then re-scheduling it after January 2, 2013.
However, applicants scheduled for an interview before January 3, 2013 may still qualify to apply for a provisional waiver, according to the preamble to the new regulation, if either: “(1) the DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or (2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.” Left open during a Stakeholders call with USCIS on January 2nd was whether immigrant visa applicants scheduled for an interview before January 3rd may cure their ineligibility for the provisional waiver by simply withdrawing the approved I-130 and having the same petitioner re-file a new I-130. According to the regulations, the answer appears to be yes.
The USCIS regulations at 8 CFR § 205.1(a)(3)(i) list the various ways that a petition can be automatically revoked. These include death of the petitioner or beneficiary, termination of the marriage in spousal cases, marriage of a child in the second preference category, and loss of the petitioner’s LPR status. Revocation also occurs if the DOS “shall terminate the registration of the beneficiary pursuant to the provisions of section 203(e) of the Act before October 1, 1991, or section 203(g) of the Act on or after October 1, 1994…” The statutory provision authorizing this termination is inappropriately titled “Lists” and describes how the State Department must estimate how many preference category immigrant visas it plans to issue in each fiscal year quarter. But the last sentence reads as follows:
The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within two years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien’s control.
State Department regulations at 22 CFR § 42.83 provide further instruction to the agency on how to proceed when the visa applicant has failed to appear at the consular interview, to apply for an immigrant visa after notification by the National Visa Center (NVC), or to present evidence overcoming the basis for a consular refusal. The alien is given one year to re-schedule the consular interview, respond to the NVC notification, or submit the additional evidence. If the alien fails to do that, the DOS is empowered to terminate the registration and send the alien notification. The notice also informs the alien that the registration may be reinstated if, within one additional year, he or she establishes to the satisfaction of the agency that the failure to apply for the immigrant visa, attend the interview, or submit the necessary evidence within the first year was due to circumstances beyond his or her control. Examples of such circumstances include “an illness or other physical disability preventing the alien from traveling, a refusal by the authorities of the country of an alien's residence to grant the alien permission to depart as an immigrant, and foreign military service.” Failure to receive the DOS notification of the availability of the visa or of the consular interview is not a valid reason if the applicant did not keep the DOS informed of his or her address.
Derivative beneficiaries who are “following to join” the principal beneficiary are not subject to the revocation under section 203(g). Therefore, the spouse or child will not be terminated for failure to apply for the immigrant visa within one year of the priority date becoming current.
The notice that NVC sends out one year after the alien has failed to apply for an immigrant visa is titled Notice of Termination of Registration (referred to by the agency as Termination 1 letter). It cites the authority under 203(g), provides the date the agency notified the applicant of the availability of the visa, and informs the applicant that as a result of his or her failure to respond, both the application for the visa and the approved petition have been canceled. It then informs the alien that the application may be reinstated and the petition revalidated if, within one year, he or she satisfies the “circumstances beyond your control” test. Applicants should respond to the NVC at the following address: U.S. Department of State, National Visa Center, Attn: Term 1 Letter, 32 Rochester Avenue, Portsmouth, NH 03801-2909
If the alien fails to respond during the second one-year period or fails to satisfy the “circumstances beyond your control” test, the NVC sends out the second letter, titled Final Notice of Cancellation of Registration (Termination 2 letter). It informs the alien that the record of registration, any approved petition, and all supporting documentation have been destroyed. Any original documents (e.g., birth, death, marriage, or divorce certificates) are to be returned to the petitioner or the visa applicant.
Practitioners who represent clients whose approved petition was forwarded to the NVC and whose priority date has been current for more than one year should first contact the NVC to determine if the case has been terminated pursuant to 203(g). If it has been terminated and revoked, then it is presumed that the underlying petition was destroyed. In those circumstances, the client will be required to re-file an I-130 petition and start the process over. The regulations do not allow for retention of the original priority date when the petition was terminated in this manner.
Some practitioners, however, advise filing a Form I-824, Application for Action on an Approved Application or Petition, rather than a new I-130, in an attempt to jump start the consular processing again. It is unclear if that action would be successful and whether that advice is accurate. If the client is eligible for adjustment of status, some practitioners have been successful in simply filing the approval notice with the adjustment packet. Again, the results are mixed, and any success in doing this would appear to violate official procedures.
Returning to the situation where your client was scheduled for an immigrant visa before January 3, 2013 but now wishes to apply for the provisional waiver: what effect would it have if the petitioner notified the USCIS of his or her desire to withdraw the approved petition? One of the other ways that an approved petition can be automatically revoked under 8 CFR § 205.1(a)(3)(i) is by doing just that. If the petition is revoked, then the DOS must terminate action on the visa application. 9 FAM 42.43 N9. Termination under 203(g) or revocation under 205.1(a)(3)(i) leads to the same result. This would seem to allow the same petitioner to file a new I-130 petition and start the process over, thus allowing the immediate relative to no longer be disqualified from the provisional waiver process. But bear in mind that it is effected by the petitioner’s withdrawing the petition through notification to the USCIS and not the visa applicant’s withdrawing the immigrant visa application or canceling the consular interview.