Notice Required Before Termination of Visa Registration

In an approved immigrant visa petition where no visa number is available yet, the National Visa Center sends the beneficiary a “Notice of Registration as Intending Immigrant” which confirms receipt of the petition at NVC and notifies the beneficiary of his/her priority date.

When the priority date has been reached, the NVC then sends the instruction packet for immigrant visa applicants. Upon receipt of this instruction packet, the alien must file Form DS-230 and submit supporting documents to start the application process.

Because of the long delay between the filing of an immigrant visa petition and the availability of a visa number – which, in the case of the Philippines, could take as long as two decades – many times the applicants do not receive the instruction packet and thus fail to respond to the follow-up instructions and apply for the visa.

The consequence of an applicant’s failure to respond is grave: the NVC will proceed to terminate the registration, thereby foreclosing the applicant’s chances at obtaining an immigrant visa.

What happens when a beneficiary of an approved immigrant visa petition does not receive notice of his or her eligibility for a visa? In the case of Singh v. Clinton, the U.S. Court of Appeals for the Ninth Circuit held that the State Department must send the notice of eligibility “to the alien”, and its failure to do so means that it could not terminate the beneficiary’s visa registration for his failure to apply.

In that case, Singh was the beneficiary of a relative petition filed by his brother in 1988. In 1991 the brother retained an attorney to assist with the petition, which was soon thereafter approved. In September 2000, the National Visa Center mailed an instructional packet to the attorney at the address listed on the petition filed nine years earlier. The NVC then sent Singh’s immigrant visa petition to the U.S. Embassy in New Delhi, India. The government also sent correspondence to the brother in connection with his immigrant visa petition.

The U.S. Embassy sent follow-up materials in 2001, 2002 and 2003 to the attorney’s address in the petition. Then on September 9, 2004, the State Department terminated Singh’s visa registration based on his failure to apply.

It turns out that Singh had actually left India for the U.S. in 1991, applied for asylum, and was eventually placed under removal proceedings. He applied for adjustment of status in 2005 to become a permanent resident, which the government denied on the ground that his visa registration had been terminated in 2004.

Singh and his brother filed a lawsuit asking for the reinstatement of the approved I-130 petition.

The Court found that the law unambiguously requires that the State Department send notice directly to the alien prior to the termination of a visa registration. The Immigration and Nationality Act provides that “(T)he 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.” An implementing rule states that the registration period begins “upon the filing of the DS-230….or the transmission by the Department to the alien of a notification of the availability of an immigrant visa.”

According to the Court, the government had no discretion to terminate the visa registration after sending the application packet to the attorney and notice to the brother. The Court ruled that notice to the brother does not satisfy the requirement because “the alien” in an I-130 petition will always be beneficiary, and that the petitioner is a U.S. citizen and so could not be an alien. The court noted that it is the beneficiary, not the petitioner, who must file a DS-230 to start the application process.