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NVC erroneously sending notices on visa availability

IMMIGRATION CORNER - Michael J. Gurfinkel (The Philippine Star) - December 27, 2020 - 12:00am

Dear Attorney Gurfinkel:

I was born in the Philippines, and in 2015 my mother petitioned me in the F-2B category (unmarried adult child of immigrant).  Recently, I received a “Notice of Immigrant Visa Case Creation” from the National Visa Center (NVC), advising I need to log on to the consular electronic application center (CEAC) and start paying fees and submitting documents. It further states that unless I do so within one year, they could terminate my case.

When I checked the Visa Bulletin, I see they are only processing F-2B priority dates from 2011. Does this mean the NVC is willing to accept and process my case years ahead of time? What should I do?

Very truly yours,

AG

Dear AG:

I have had several Filipinos come to my office recently with the same issue: their priority date is not yet current, yet the NVC is already sending notices to them to begin processing their immigrant visa and advising that their failure to do so within one year could result in their case being terminated or shredded.

While I don’t know the actual reason for this, in my opinion, it may be that someone working at the National Visa Center is making a mistake, by not focusing on the fact that you were born in the Philippines and are therefore subject to the priority dates for the Philippines. Instead, they perhaps mistakenly assumed you were born outside the Philippines, where priority dates are “current.” (So you know, a person’s priority date is based on their country of birth.)

For example, right now, NVC would be sending these notices to begin visa processing to Filipinos who have priority dates earlier than April 2012. However, for the rest of the world, they would send these notices to those who have priority dates earlier than May 2016. Therefore, if you were born outside the Philippines (or Mexico, which is also backlogged), you would already be eligible to begin processing your immigrant visa if you have a 2015 priority date.

However, if you are from the Philippines, you still have several years to go before your 2015 priority date becomes current.

This creates problems for Filipinos. First, many get excited, thinking they are now eligible to be processed for their immigrant visa, even though, in reality, they still have several more years to wait. Second, even though the NVC has clearly made a mistake in sending out these notices prematurely, they could then add insult to injury by terminating the case unless you respond within one year.

I would suggest you notify the NVC in writing, such as by email, that you were born in the Philippines and your priority date is not yet current, and that they should  classify you in the proper visa category for the Philippines, and not terminate your case. Make sure you save copies of your correspondence to them and their acknowledgment, just in case they go ahead and terminate the case by mistake.

I also hope someone at the NVC becomes aware of this problem and notifies either their employees or contractors that the Philippines is years behind the rest of the world in terms of the waiting time for various family petitions.

If this situation applies to you, you may want to consult with an attorney who can make sure your case is properly classified and protected against erroneous termination and shredding by the NVC.

WEBSITE: www.gurfinkel.com

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