9 FAM 504.13
TERMINATION OF IMMIGRANT VISA REGISTRATION
(Office of Origin: CA/VO)
9 fam 504.13-1 statutory and regulatory AUTHORITIES
9 FAM 504.13-1(A) Immigration and Nationality Act
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
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
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”
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)?
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 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: 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
a. Consular managers should periodically use the various reporting features available in the automated immigrant visa processing system 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 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, Packet 4(a), or the modified follow up (MFL) letter). (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
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
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 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 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 comply with the follow-up instructions within one year and a visa is available, you or NVC must initiate proceedings to terminate the alien’s IV registration.
9 FAM 504.13-2(C) Extension of One-Year Period of Registration
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
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 For Posts
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:
P.O. Box 65446
Potomac Falls, VA 20165
9 FAM 504.13-2(E)(2) Final Notice of Cancellation of Registration for Posts
FINAL NOTICE OF CANCELLATION OF REGISTRATION
States Department of State
Washington, D.C. 20520
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.
9 FAM 504.13-3 Reinstatement of Terminated Petitions
9 FAM 504.13-3(A) Requests for Reinstatement
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 applicant’s 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 applicant’s 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 L/CA.
9 FAM 504.13-3(B) Reinstatement Procedures
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)
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 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
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).