9 FAM 504.13
TERMINATION OF IMMIGRANT VISA REGISTRATION
(CT:VISA-839; 06-04-2019)
(Office of Origin: CA/VO/L/R)
9 fam 504.13-1 statutory and
regulatory AUTHORITIES
9 FAM 504.13-1(A) Immigration
and Nationality Act
(CT:VISA-1; 11-18-2015)
INA 203(g) (8 U.S.C. 1153(g); INA 221(g) (8 U.S.C.
1201(g)).
9 FAM 504.13-1(B) Code of
Federal Regulations
(CT:VISA-1; 11-18-2015)
8 CFR 205(a)(1); 22 CFR 42.43; 22 CFR 42.83.
9 FAM 504.13-2 Inactive Cases
9 FAM 504.13-2(A) Termination
of Inactive Cases
(CT:VISA-544; 03-28-2018)
INA 203(g) provides for
termination of registration of the visa petition 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 INA 203(g)
also permits reinstatement of the registration where the alien
establishes within 2 years following the date of notification of the
availability of such visa that such failure was due to circumstances beyond the
alien's control.
9 FAM 504.13-2(A)(1) When a
Case is Considered Inactive
(CT:VISA-839; 06-04-2019)
An applicant becomes liable to possible termination of
registration under INA 203(g) if the applicant:
(1) Has not made an application
for a visa within one year of notice of
visa availability. The beneficiary has one year to make an application for a
visa, beginning on the date the notice of visa availability is issued.
(2) Does not respond to the appointment notice
included with the Immigrant Visa Appointment Package, meaning that the
applicant fails to appear for a visa application interview on the scheduled
appointment date and fails to take further action on the case within one year
of the scheduled interview;
(3) Is refused at the interview under INA 221(g), and fails
to present evidence purporting to overcome the basis for a refusal under INA
221(g) within one-year following the refusal; or
(4) Fails to comply with the Follow-up Instruction
Package for Immigrant Visa Applicants or logs
into their CEAC account within one year.
9 FAM 504.13-2(A)(2) Who is
Subject to 203(g)?
(CT:VISA-544; 03-28-2018)
a. Applicants Whose Cases are Subject
to Termination Under 203(g): INA 203(g) procedures apply to all immigrant
visa classifications, except as noted in 9 FAM
504.13-2(A)(2) paragraph b below. The
covered classifications include those established by approval of immigrant
petitions I-130, I-140, and I-360 for applicants who are immediate relatives,
family-preference immigrants, employment-preference immigrants, and special
immigrants.
b. Applicants Whose Cases are Not
Subject to Termination Under 203(g):
(1) INA 203(g) procedures do not apply to applicants
in categories for which numbers are unavailable, and applicants in
limited-duration programs with specific timelines dictated by other statutory
or regulatory provisions. For example, special immigrants whose entitlement to
status is established by approval of Form DS-1884
are subject to the limited validity of that form as described in 22 CFR
42.32(d)(2)(i)(A) and not the termination procedures under INA 203(g).
(2) Administrative Processing: Applications
refused under INA 221(g) for
administrative processing are not subject to INA 203(g) provisions during the time period that the
application is pending administrative processing.
(3) Unavailability of Documentation
or Information to Overcome INA 221(g) Refusal:
Applications refused under INA 221(g) for
reasons other than administrative processing are subject to termination under
203(g), but an applicant who makes a credible assertion that documentation or
information is not available within one year of the INA 221(g) refusal would
not be subject to INA 203(g) provisions.
(4) Beneficiaries of More than One
Approved Petition: If an applicant is the beneficiary of more than one
approved visa petition, you would terminate only the petition for which the
beneficiary failed to make a timely application. All other petitions
would remain valid.
(5) Beneficiaries of New Petition
Filed by Same Petitioner: If the same petitioner files a new petition
for the same beneficiary, and the original petition was revoked under INA
203(g), the original priority date would not be valid.
(6) Following-to-Join Applicants:
Applicants who are following to join the principal applicant are not subject
to the provisions of INA 203(g).
9 FAM 504.13-2(A)(3) Identifying
Inactive Cases
(CT:VISA-839; 06-04-2019)
a. Consular managers should periodically use the
various reporting features available in the automated immigrant visa processing
system to monitor the status of pending IV cases, including those considered
inactive and undergoing termination processing, and long-pending INA 221(g)
refusal cases.
b. The termination process should be initiated if the
applicant has not applied or responded to follow-up mailings by post or the
National Visa Center (NVC) within one year after receiving notification of the
availability of a visa (i.e., after receiving Packet 4 or Packet 4(a)). (See 9 FAM
504.4-5(C)(1).) Cases should also be
terminated if the applicant fails to present evidence purporting to overcome
the basis of an INA 221(g) refusal within one year. Consular officers should
refer to 9 FAM
504.13-2(B)(1) regarding termination of registration.
9 FAM 504.13-2(B) Notification
of Possible Termination of Registration
9 FAM 504.13-2(B)(1) Possible
Termination Notification Requirements
(CT:VISA-839; 06-04-2019)
a. Upon receipt of an approved petition granting an
alien immediate relative or preference status, the National Visa Center sends
the alien beneficiary an instruction packet notifying the beneficiary of
receipt of the petition and advising the alien what steps, if any, to take in
applying for a visa. (See 9 FAM 504.4-2(B).) The NVC is responsible for the dispatch of
the vast majority of instruction packets, but posts may provide instruction
packets for a limited number of exceptional cases. (See 9 FAM
504.4-2(C).) Notification of possible
termination of registration begins at the instruction packet stage as described
in this guidance.
b. You or NVC must send a follow-up package including
notification of possible termination of registration pursuant to INA 203(g) in cases in which applicants have not responded
to the instruction package for immigrant visa applicants within one year. In
the case of an applicant whose priority date has not been reached on the
one-year anniversary, you or NVC should send this follow-up package when the
applicant's priority date is reached.
c. You or NVC may choose to initiate the termination
process by mailing only the notice of possible termination of registration, a
form letter automatically generated by the automated immigrant visa processing
system.
(1) If the applicant responds requesting that
registration not be terminated, then the follow-up instruction package for IV
applicants outlined below should be sent.
(2) Alternatively, you or NVC may choose to send the
instruction package as an initial mailing.
(3) The Follow-Up Package Consists
of:
(a) Notice of Possible Termination of Registration;
(b) Form DS-2001, Notification of Applicant Readiness;
and
(c) Instructions for Accessing Form DS-260, Online
Application for Immigrant Visa and Alien Registration.
d. All cases (IVIS and
PIVOT) held at NVC will have notifications of termination mailed
directly to the applicant. The follow-up package mailed from NVC consists of:
(1) Notice of Possible Termination of Registration;
and
(2) A response request containing the following:
(a) Yes, I wish to pursue my immigrant visa application,
please send me information on applying for my immigrant visa. I
understand I will have to resubmit all required fees and documents in order to
continue the immigrant visa processor
(b) No, I do not want to pursue my immigrant visa
application for one of the following reasons:
(i) I have adjusted status (please send a copy of
both sides of your alien registration card);
(ii) I have received an immigrant visa through another
petition and am now a permanent resident (please send us a copy of both sides
of your alien registration card);
(iii) I am no longer interested in immigrating to the
United States; or
(iv) Other (please explain).
9 FAM 504.13-2(B)(2) Applicant
Response to Notification
(CT:VISA-839; 06-04-2019)
a. Applicant Advises Documentarily
Qualified/Completed:
(1) If the applicants response to the follow-up
package is to return Form DS-2001, Notification of Applicant Readiness, and
Form DS-260, Online Application for Immigrant Visa and Alien Registration, you
must process the applicant in the same manner as any other applicant who
responds to the instruction package for IV applicants (i.e., background checks will be conducted, a
number will be requested, a medical exam will be scheduled, and the applicant
will be sent an appointment letter).
(2) If the applicants response to the follow-up
package is sent to NVC, NVC will renew the
process of collecting fees as outlined in 9 FAM
504.6-5(B).
b. Applicant Fails to Respond:
If the applicant does not comply with the follow-up instructions within one
year and a visa is available, you or NVC must initiate proceedings to terminate
the aliens IV registration.
9 FAM 504.13-2(C) Extension of
One-Year Period of Registration
(CT:VISA-544; 03-28-2018)
a. Failure to Appear: The
Department (CA/VO) considers the end of the one-year period to apply for the
visa to be a mandated date triggering termination of the petition for inactive
applications. The one-year period stops, however, if during that time the
applicant takes substantive steps to apply for the visa, such as rescheduling
the immigrant visa appointment date. If the applicant reschedules the
appointment date within one year of an initial failure to appear the one-year
period to take action on the visa would begin anew on the new appointment date.
b. 221(g) refusals: The
one-year period is extended each time an applicant presents evidence reasonably
purporting to overcome the INA 221(g) ineligibility.
9 FAM 504.13-2(D) Initiating
Termination of Registration
(CT:VISA-544; 03-28-2018)
a. Notice of Termination of Registration Letter (Termination 1): If,
after one year, the applicant does not request a new visa appointment date or
has failed to present evidence to overcome an INA 221(g) refusal requesting
evidence from the applicant, post will use the features of the
automated immigrant visa processing system to run the "Report of Cases
Subject to Possible Termination" and must send the automatically
generated Notice of Termination of Registration letter (also known as the
Termination 1 letter) to all inactive cases on that report. It is essential
that consular managers take steps to ensure that data entry is kept as up to
date as possible so that this report and others are as accurate as possible
with respect to which cases are inactive. It is also vital that consular
personnel use the date of last contact filed in the automated application so
that active cases are not improperly placed.
b. Final Notice of Cancellation
(Termination 2): When one year has passed following the mailing of the
Notice of Termination of Registration (Termination 1 letter), and the applicant
has not established that a basis for reinstatement of registration exists, post
must send the applicant the Final Notice of Cancellation of Registration (also
known as the Termination 2 letter), which is generated automatically by the
automated system.
c. Post should ensure at a minimum that the Notice of
Termination of Registration is sent to the
address on file for the applicant and any third party authorized by the
applicant to receive notices on his or her behalf.
9 FAM 504.13-2(E) Termination
Notices
9 FAM 504.13-2(E)(1) Notice
of Termination of Registration
(CT:VISA-114; 04-20-2016)
NOTICE OF TERMINATION OF REGISTRATION
United States Department of State
Washington, D.C. 20520
Dear Visa Applicant:
We refer to your application for an immigrant visa.
Section 203(g) of the Immigration and Nationality Act requires that your
registration be canceled and any petition approved on your behalf canceled, if
you do not apply for your immigrant visa within one year of being advised of
visa availability, or fail to present evidence purporting to overcome the basis
of your refusal under INA 221(g) within
one year following the refusal.
You were advised of this requirement on
_______________________, but we have not received a response from you since
then. As a result, you are hereby notified that your application for a
visa has been canceled and any petition approved on your behalf has also been
canceled.
Your application may be reinstated and any petition
revalidated if, within one year, you can establish that your failure to pursue
your immigrant visa application was due to circumstances beyond your control.
If you have any questions or are experiencing
difficulty in complying with the above instructions, please contact the
National Visa Center at the address below:
United States Department of State
National Visa Center
Attn: Term 1 Letter
32 Rochester Avenue
Portsmouth, NH 03801-2909
Tel: (603) 334-0700
9 FAM 504.13-2(E)(2) Final
Notice of Cancellation of Registration
(CT:VISA-1; 11-18-2015)
FINAL NOTICE OF CANCELLATION OF REGISTRATION
United States Department of State
Washington, D.C. 20520
Dear:
This office previously notified you that as of
____________________ your registration for an immigrant visa was cancelled, and
any petition approved on your behalf was also cancelled. We informed you
that your application might be reinstated if, within one year, you could
establish that your failure to pursue your immigrant visa application was due
to circumstances beyond your control.
Since you have failed to do so, the record of your registration
and any petition approved on your behalf and all supporting documents have been
destroyed; any Department of Labor certification has been returned to your
prospective employer.
Principal Applicant:
Case Number:
Sincerely,
Letter
Termination 2
9 FAM 504.13-3 Reinstatement of
Terminated Petitions
9 FAM 504.13-3(A) Requests for
Reinstatement
(CT:VISA-544; 03-28-2018)
a. After the One-Year Period has
Ended: If the applicant is able to persuade you within one year
following issuance of Notice of Termination of Registration (Termination 1 letter) that the failure to
appear within the first year was due to circumstances beyond his or her
control, the applicant would be entitled to reinstatement of the petition and a
new visa appointment. The date that you agree to set the new appointment would
start another one-year period in which to apply.
b. Notification of Change of Address:
The applicant is responsible for providing the visa-issuing post with a
current address. The applicants failure to receive the notice of termination
because he or she neglected to notify post of his or her change of address will
not be considered as a reason beyond the applicants control for not pursuing
the application.
c. "Circumstances Beyond
Control": Whether an applicant has established that the failure to
apply for the visa was due to circumstances beyond control is a factual
determination to be made by the consular officer and depends upon the consular
officer's assessment of the unique circumstances of the case. Circumstances
beyond the applicant's control will generally be factors that have arisen
outside of the applicant's normal circumstances, including medical emergency or
natural disaster. Convenience or a wish not to travel to the visa interview within
the one year period is not a factor outside of the applicant's control.
d. Requests for Advisory Opinions:
The Department encourages posts to submit advisory opinion requests whenever
they are in doubt as to whether INA 203(g) should be applied to CA/VO/L/A.
9 FAM 504.13-3(B) Reinstatement
Procedures
(CT:VISA-839; 06-04-2019)
a. If during the one-year period following the mailing
of the Notice of Termination of Registration (Termination 1 letter), the
applicant satisfies you that failure to pursue the application was due to
circumstances beyond his or her control, you shall reinstate the application
and petition.
b. Reinstating Cases for Documentarily
Completed Applicants:
If the applicant is documentarily completed,
post will renew all clearances that are over six months old and, if the
priority data is current, request a visa number from the Immigration Visa
Control and Reporting Division (CA/VO/DO/I).
c. Reinstating Cases for Applicants Not Documentarily Completed: If the
applicant requesting reinstatement of the case is not yet documentarily completed, post must:
(1) Give the applicant a new Instruction Package for
Immigrant Visa Applicants; and
(2) Ensure that the automated immigrant visa
processing system is updated to reflect this action.
9 FAM 504.13-4 Disposition of
Documents in Terminated Cases
9 FAM 504.13-4(A) Petitions
Terminated Under INA 203(g)
(CT:VISA-839; 06-04-2019)
a. Disposition of Visa Petitions:
Due diligence requires us to protect the privacy
of the applicant/petitioner by destroying the original or support documents if
the applicant/petitioner fails to respond to mailings from posts or the
National Visa Center. Therefore, when a case is terminated under INA
203(g), posts and the National Visa Center must take the following action to
dispose of visa petitions:
(1) Notify the petitioner/applicant or agent that the
petition was revoked under INA 203(g) (Termination 2 letter);
(2) Destroy the physical
petition and copies of supporting documents filed with the petition;
(3) Return the physical labor
certification to the prospective employer; and
(4) Return original documents (i.e., birth, death,
marriage, divorce certificates) to the petitioner (if filed with the petition),
or to the beneficiary or agent (if filed during the application process).
b. Disposition of Unused Labor
Certifications: If the certification will not be used because
registration has been terminated you must return the petition and the
supporting documents to the approving office of the Department of Homeland
Security/United States Citizenship and Immigration Services (DHS/USCIS) under
cover of a memorandum.
9 FAM 504.13-4(B) Pre-IMMACT
90 P3 and P6 Petitions
(CT:VISA-544; 03-28-2018)
a. IMMACT 90 provided for the conversion of employment-based
petitions (P3 and P6) to the new E2 and E3 classifications, allowing a two-year
period for such conversion. If the beneficiaries did not apply within the
two-year period, the petitions have expired. In such cases, post must take the
following actions:
(1) Return the labor certification, along with any
attached documentation, to the employer or attorney of record;
(2) Attach a memo with the following text:
"We are returning the enclosed labor
certification (ETA 750A & B) which you filed on behalf of (name of
beneficiary). The accompanying Form I-140, Immigrant Petition for Alien
Worker, which you filed at the same time, has expired after a period of at
least two years. During this two-year period, a visa number was available but
the beneficiary failed to apply for an immigrant visa. The petition is part of
a group of employment-based petitions which converted to another visa
classification under the provisions of the Immigration Act of 1990. The
petition has now expired and neither our office nor the Department of State is
retaining any record of the petition. The labor certification is returned to
you for appropriate action."
b. Labor Certification Returned as
Undeliverable: If the labor certification is returned as undeliverable,
post may destroy the certification and any attached documents. Any significant
original documents (i.e., birth, death, marriage certificates, etc.) should be
returned to the petitioner or beneficiary (whoever submitted it).