9 FAM 504.13
TERMINATION OF IMMIGRANT VISA REGISTRATION
(CT:VISA-2095; 10-07-2024)
(Office of Origin: CA/VO)
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-2095; 10-07-2024)
8 CFR 205.1(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-1413; 11-03-2021)
INA 203(g) provides for termination of registration of the visa petition of any individual who fails to apply for an IV within one year following notification to the applicant of the availability of a visa. But INA 203(g) also permits reinstatement of the registration where the individual establishes within 2 years following the date of notification of the availability of such visa that such failure was due to circumstances beyond their control.
9 FAM 504.13-2(A)(1) When a Case is “Inactive”
(CT:VISA-2015; 06-21-2024)
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. However, if there is retrogression within that year, then the case cannot be deemed inactive until there has been a full year of visa availability.
(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 fails to log into their CEAC account within one year before the case is sent from NVC to post, assuming that the case has been current during that time.
9 FAM 504.13-2(A)(2) Who is Subject to 203(g)?
(CT:VISA-2015; 06-21-2024)
a. Applicants Whose Cases are Subject to Termination Under 203(g): INA 203(g) procedures apply to all IV classifications, except as noted in 9 FAM 504.13-2(A)(2) paragraph b below. The covered classifications include those established by approval of IV 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 42.34(b) 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 period that the application is undergoing 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: An applicant who is “following to join” the principal applicant is not subject to INA 203(g).
(7) Applicants with pending I-601A waivers: Applicants who are awaiting processing of a waiver application by USCIS are not subject to termination.
(8) Applicants who are refused under INA 212(a): Applicants who are refused under a ground of ineligibility under INA 212(a) are not subject to the provisions of INA 203(g), as they are not in one of the categories in 9 FAM 504.13-2(A)(1).
(9) Applicants who are seeking to Adjust Status in the United States: If USCIS sends a petition to the NVC but one of the conditions below applies, then the registration should not be terminated, assuming that it has not been previously terminated appropriately. If the NVC or a consular section becomes aware that one of these circumstances applies, it should return the petition to USCIS with a note or cover memorandum indicating that the applicant is seeking to adjust status in the United States.
(a) The applicant indicated an election to adjust status on the petition form or other USCIS filing [and USCIS forwarded the petition to the Department in error]; or
(b) The applicant initially elected consular processing but took action (such as filing an I-485) within one year of visa availability to instead request adjustment of status processing.
(10) Cases that have not had one full year of visa availability must not be terminated. If there is retrogression, post must wait for a full year of visa availability before the Term 1 letter can be sent.
9 FAM 504.13-2(A)(3) Identifying Inactive Cases
(CT:VISA-2090; 10-03-2024)
a. Consular managers should periodically use the various reporting features available in IVIS to monitor the status of IV cases, including those considered inactive and undergoing termination processing, and INA 221(g) refusal cases.
b. The termination process should be initiated if the applicant or designated third party has not applied or responded to follow-up contact 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 the modified follow up (MFL) letter. See 9 FAM 504.4-5(C)(1). Cases should also be terminated if the applicant or designated third party fails to present evidence purporting to overcome the basis of an INA 221(g) refusal within one year. You should refer to 9 FAM 504.13-2(B)(1) below 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-2090; 10-03-2024)
a. Upon receipt of an approved petition granting a beneficiary immediate relative or preference status, the National Visa Center sends the beneficiary, and any third party authorized by the applicant to receive notices on their behalf an instruction packet notifying them of receipt of the petition and advising them 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 IV 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 notifying the applicant and any third party representative designated by the applicant in writing (by electronic means or physical mail) with only the notice of possible termination of registration, a form letter automatically generated by the automated IV processing system.
(1) If the applicant and/or their third party representative 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 notification in writing (by electronic means or physical mail).
(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 sent directly to the applicant, petitioner, and attorney of record. The follow-up package sent 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 to continue the immigrant visa process.
(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-2015; 06-21-2024)
a. Applicant Advises Documentarily Qualified/Completed:
(1) If the applicant’s response to the follow-up package is to return Form DS-2001, Notification of Applicant Readiness, and the DS-260, 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 applicant’s 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 respond or comply with the follow-up instructions within one year and a visa is available, you or NVC must initiate proceedings to terminate the applicant’s IV registration.
9 FAM 504.13-2(C) Extension of One-Year Period of Registration
(CT:VISA-1413; 11-03-2021)
a. Failure to Appear: The end of the one-year period to apply for the visa is the mandated date triggering termination of the petition for inactivity. The one-year period stops, however, if during that time the applicant takes substantive steps to apply for the visa, such as rescheduling the IV appointment date. If the applicant reschedules the appointment date within one year of an initial failure to appear the one-year period to apply for 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-2090; 10-03-2024)
a. Notice of Termination of Registration Letter (Termination 1): If, after one year, the applicant or their third party representative 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 IVIS 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 notification being sent of the Notice of Termination of Registration (Termination 1 letter), and the applicant (or representative) has not established that a basis for reinstatement of registration exists, post must send the applicant and any third party authorized by the applicant to receive notices on their behalf 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 electronic or physical address on file for the applicant and any third party authorized by the applicant to receive notices on their behalf.
9 FAM 504.13-2(E) Termination Notices
9 FAM 504.13-2(E)(1) Notice of Termination of Registration For Posts
(CT:VISA-1123; 07-22-2020)
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:
DOS Visa
P.O. Box 65446
Potomac Falls, VA 20165
Nvc.state.gov/inquiry
9 FAM 504.13-2(E)(2) Final Notice of Cancellation of Registration for Posts
(CT:VISA-1123; 07-22-2020)
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-2090; 10-03-2024)
a. After the One-Year Period has Ended: If the applicant or agent 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 their 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 current contact information or physical address. The applicant’s failure to receive the notice of termination because they neglected to notify post of their change of contact information is not a “reason beyond the applicant’s control” for not pursuing the application. However, please ensure that all parties to the case have been duly notified as indicated in 9 FAM 504.13-2(D) paragraph (c).
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 you and depends upon your 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. You must reinstate cases if there was not one full year of visa availability when the Term 1 letter was sent. If there is retrogression, the Term 1 letter cannot be sent until one full year has passed.
e. You must also reinstate cases if post has not met the notification requirements or if the case has been prematurely terminated due to system or other error.
f. Requests for AOs: The Department encourages you to submit AO requests to L/CA whenever you are in doubt as to whether INA 203(g) should be applied or if the case requires reinstatement.
9 FAM 504.13-3(B) Reinstatement Procedures
(CT:VISA-2090; 10-03-2024)
a. If during the one year following the notification of the Notice of Termination of Registration (Termination 1 letter), the applicant or designated representative satisfies you that failure to pursue the application was due to circumstances beyond the applicant’s control, you must reinstate the application and petition.
b. Reinstating Cases for Documentarily Completed Applicants: If the applicant's case 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 and any third party authorized by the applicant to receive notices on their behalf a new Instruction Package for Immigrant Visa Applicants; and
(2) Ensure that IVIS 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-2090; 10-03-2024)
a. Disposition of Visa Petitions: Due diligence requires us to protect the privacy of the applicant/petitioner by destroying the original or supporting documents if the applicant/petitioner/designated third party fails to respond to notifications 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, and 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 unused labor certs along with the petition to the approving USCIS office; 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).
(5) For PIVOT cases, purge the digital record by updating the case status to Administratively Closed.
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-1413; 11-03-2021)
a. IMMACT 90 provided for the conversion of employment-based petitions (P3 and P6) to the new E2 and E3 classifications, allowing two years for such conversion. If the beneficiaries did not apply within two years, 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 at least two years. During this two years, a visa number was available, but the beneficiary failed to apply for an IV. 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).