DEAR Attorney Gurfinkel:
I’m a U.S. citizen and petitioned my married son many years ago when my grandchildren were still very young. When the priority date became current, the National Visa Center (NVC) sent us various forms and had us pay various fees, which included all my grandchildren.
When the family went for their interview at the U.S. Embassy, the consul said my son, his spouse, and my youngest grandchild were eligible for visas. My other grandchildren were not eligible because they had “aged out” or turned 21 years of age.
How come we paid all those fees for my other grandchildren, only to be later told they don’t qualify? If we paid the visa fees, shouldn’t they be entitled to their visas?
Very truly yours,
RB
Dear RB:
When an applicant pays certain fees, those are application fees, not visa issuance fees. In other words, the person is paying fees merely to APPLY for a visa. It is only when they are at the window for their interview that the consul determines whether they are eligible.
However, in order to get up to the window for the consul to make that determination, you first have to apply and therefore, pay the application fee.
If the person is found eligible, they then pay a “delivery fee,” which would be for the embassy’s messengers to deliver their passport with the visa. However, just because you apply for a visa does not mean you’re entitled to it. The consul has to make that determination.
For example, many people apply for a visitor’s visa. They pay the application fee and are scheduled for an interview. Just because they paid the application fee does not mean they will be issued the tourist visa. They could still be refused the visa.
When a person files a petition with the USCIS, they also have to pay the filing fee. Just because they’ve paid the filing fee does not mean that the petition will automatically be approved. The petition could still be denied. Or even if USCIS approves the petition, and they “apply” for their visa at the embassy, the consul could still refuse to issue the visa, even though the petition has been approved and the person paid the fee to apply for the visa.
In your case, when the NVC charged you various fees, it was for your family members to “apply” for their immigrant visas. If the consul later found them eligible, the visas could be issued. But if the consul determined they were not eligible for whatever reason (such as aging out, fraud, crimes, no petitionable relationship, etc.), the visa could still be refused even though the application fees were paid.
If you are about to apply for a visa, but you have questions or concerns about whether you or any family member are eligible for the visa, you may want to consider consulting with an attorney, who could determine eligibility before you pay all those application fees.
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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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