MOST family-based petitions take years to be processed and for the priority date to finally become current. For example, it could take nine or more years for USCIS to process a petition for a married son or daughter or a sibling, and then up to 30 years for the priority date to become current, or visa to become available.
Meanwhile, there could have been changes in circumstances that could affect the petition and/or could result in the case being denied or terminated without the alien’s knowledge.
The following are some of the more common situations I have encountered with Filipinos in connection with issues they have with their petitions. It could help your case if you follow these tips or suggestions to safeguard your petition:
1. Make copies and file by certified or overnight mail. I’ve encountered situations where a person came for a consultation stating they “remembered” that some time back in the early 80s or late 90s, Tatay filed some sort of petition. When I asked for a copy, they state they cannot locate it. Or they did not bother making any copies before filing, and sent it by regular mail. To establish eligibility for a benefit, you need documentary proof, not your memory. Therefore, whenever you submit anything to USCIS, make copies and don’t send it by regular mail. Sending or filing by certified or overnight mail at least provides a record/receipt.
2. Get the filing receipt. Once a person files a petition, they should get a receipt within a few weeks. If you filed something, but never received a receipt, there may be problems as to whether it was ever received by the USCIS. The receipt is important because it has the receipt number, which is how USCIS will track your document.
3. Get the approval notice, check processing times. After the petition has been filed and the receipt is issued, keep track of the approval notice. I have had many situations where a person may have received the filing receipt, but not the actual approval notice. Receiving the approval notice depends on how backlogged the USCIS is and their processing times for particular petitions. For example, petitions by green card holders of their spouse and minor children could take up to two years to process. Petitions for a brother and sister of a US citizens could take at least 10 years before the approval notice would be received. So, you may not receive the approval notice right away. If your case was filed and it is beyond USCIS’s processing times, but no approval notice was received, you could have issues or problems with your case.
4. Notify USCIS and NVC of address change. If the petitioner or beneficiary moved since the date the petition was filed, you need to notify the USCIS and NVC of your new address. It is not enough you give a postcard to the post office when you first move, as that notification expires after one year. You need to give direct notice to USCIS and the NVC. This is critical because if you do not provide your new address, they will send notices to the last address they have on file. Sometimes the USCIS will request for evidence (RFE) and there is a deadline to respond. If you do not respond within the deadline, the case could be denied or terminated.
For example, a petition is filed, the family moves, and five years later USCIS sends a request for evidence (RFE) to the old address, giving the person 87 days to respond. The person never receives the RFE, because they moved. The case is then denied for abandonment. Meanwhile, the family keeps waiting for years and years on the petition, unaware it had been denied. And you can’t seek reconsideration on the grounds you never received the notice, because it was your responsibility to notify the government of your new address.
Similarly, the NVC will send notices to the last address they have on file for you. If you move, they will send the notices to your old address, giving you one year to respond. If you do not respond, the case is shredded and terminated, and the priority date is lost.
In a future article I will discuss more tips and strategies for safeguarding your petition.
But if you have experienced any of the issues discussed in this article, you may want to seek the advice of an attorney to make sure your petition is still active and moving forward.
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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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