DEAR Atty. Gurfinkel:

I petitioned my married son in 1998 while he was still in the Philippines. He later came to the U.S. on a visitor’s visa and overstayed. We are now receiving notices from the National Visa Center (NVC) advising his priority date is current, his visa is available, and he needs to apply for his visa.

I think we should just ignore these notices and not reply, since he is already in the U.S. Also, I’m afraid the NVC will come after him and put him in deportation. What should I do? Should I just ignore the NVC notices?

Very truly yours,

Dear RD:

You should NOT ignore notices from NVC. If a person or his representative does not respond to NVC notices within one year of receipt, the NVC could terminate the case under section 203(g) of the Immigration and Nationality Act. This results in the case or petition effectively being shred, and the priority date is lost. A new petition would need to be filed with a new priority date.

Visas are similar to having a reservation on a particular flight. If you have your reservation and seat, then you board the flight to your destination. However, if the airline makes the boarding announcement and starts boarding the flight, but you do not check in, then the airline would cancel your reservation and give your seat to a standby passenger. Even if you later show up at the airport after the flight has departed, you’re out of luck. You didn’t check in, so your reservation was canceled.

The NVC works the same way: they notify you that your visa is available (similar to a boarding announcement) and gives you one year to “check in.” If you don’t, your registration is canceled. This is true even if the applicant is in the U.S. and does not intend to have their case processed at the U.S. Embassy. The NVC still needs to be notified.

Recently, I encountered a case where a mother had petitioned her adult son who was in the U.S. and out of status. The priority date became current, and she received notices from the NVC, but purposely did not respond because she was afraid it would endanger her son. As a result, the petition and case were terminated. While there are provisions for having a case reinstated being afraid to respond is not a justification or beyond a person’s control.

If a person is receiving notices from the NVC, and they have questions about how to proceed, I suggest they seek the advice of an immigration attorney. In this mother’s case, she decided she knew the law by herself and did not respond. But she messed up her son’s case: the case was terminated and the priority date was lost.

On a separate but related issue, if your priority date is current, but you have not received notices from the NVC, you may also want to consult with an attorney, just in case NVC notices giving you one year to respond are being sent to a different or wrong address. I’ve also encountered many cases where the case was terminated because the person did not respond within one year since obviously notices were sent to a different address.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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