NVC sending out early notices of visa availability

Dear Attorney Gurfinkel:

I petitioned my brother in 1989 in the F-4 category (brother/sister of US citizen). Recently, we received from the NVC various forms for my brother’s immigrant visa processing, such as Choice of Address and Agent form. Our whole family is excited, and my brother is eagerly looking forward to joining us in the US with his family.

However, I saw on the Visa Bulletin that they’re only processing brother and sister petitions filed in 1987. Does this mean the NVC is already going to start processing my brother’s immigrant visa? What should I do with this paperwork? Fill it out, pay the fees, send it in?

Very truly yours,

  J.S.

Dear J.S.:

I have had several people come to me recently with the same question and situation as yours: the priority date on their petition is still years away, but the NVC is already sending them the Choice of Agent forms, etc. In one case, an immigrant parent filed a petition for her single adult child (category F-2B) in 2001, but they’re only processing immigrant visas in that category for cases filed in 1998. So it is at least three years or more before that family member is eligible for a visa. In your case, if you petitioned your brother in 1989, and they’re only processing 1987, your brother would still have to wait approximately two years or more before he and his family would be eligible for visas.

In the past, the NVC would typically send out the paperwork a few months before the priority date is current— not years before, as they are apparently doing now.

It would seem that this early, premature, notification of visa availability creates problems, complications, and dilemmas for visa applicants and the petitioner. The reason is that once NVC sends you these forms, you have one year to respond. The regulations provide that if the form, “is not returned within one year, the NVC will begin the case termination process”. Similarly, if a person submits paperwork, but the NVC determines that the file is incomplete or lacks proper documentation, the NVC sends a checklist to the petitioner, indicating what changes or additional information or documents are needed. The regulations provided that, “If the petitioner, agent or applicant does not return the documents within one year, the NVC will initiate the administrative process for post to begin case termination”. In other words, if a person  does not respond within one year to these notifications (or requests for additional documentation or information), his or her case could wind up being terminated under INA Section 203(g). If the case is then terminated by the NVC, the petition is destroyed, and the priority date is lost. 

So, it is very important for people, when they receive these types of notices from the NVC, that they take some sort of action, or they can risk having their case shredded, and they would lose their priority date. In that case, they would have to go to the back of the line and start all over again, with a new petition and new priority date.

However, just because the NVC has sent these notices to you (years before you’re actually eligible for the visa) does not mean that you are going to receive that visa soon. A visa can only be issued if the priority date is current. Still, these notices start the process for the NVC to eventually terminate cases, if people don’t respond. 

That is why it is very important that you watch and monitor the priority date of your case, and advise the NVC of any change of address. After all, it is possible, that after so many years after the case is filed, people move and change addresses. In that case, you need to let the NVC know your new address, because they may send the paperwork to your old address, and you may not receive that paperwork. Then, without your ever having been aware of it, the case could be terminated and the file destroyed. (In this regard the regulations state that it is your obligation to provide the NVC with your current address, and the “failure of an applicant to receive the notice of termination due to change of address in which the post [NVC or Embassy] was not notified, will not be considered as a reason beyond the applicant’s control for not pursuing the application”. In other words, failure to receive the paperwork because you moved and didn’t let the NVC know of your new address is not a valid excuse or reason to have the case reinstated.

If you received these notices from the NVC, you may want to seek the advice and guidance of a reputable attorney who can assist you in properly responding. There could be complications and pit falls. For example, what if a person petitioned his or her family member in the Philippines, but that family member is now in the U.S.? There are laws that state that if a person has been out of status for more than 180 days, and departs the U.S., even to be processed for an immigrant visa, he or she could be banned from returning to the U.S. for three or ten years. That is why it is important that you seek the advice of a reputable attorney, who can help you respond to these NVC notices, and guide you on the proper steps to take to ensure your family member will be able to receive his or her green card, without any risk of having the case “terminated”.

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