Section 203(g) of the Immigration and Nationality Act (INA) allows the Department of State (DOS) to terminate an approved immigrant visa petition (technically, the visa “registration”) after the immigrant visa applicant fails to do the following and one year goes by: (1) respond to notices or pay the immigrant visa fee to the National Visa Center (NVC); (2) appear at the consular interview; or (3) provide requested documentary evidence after a consular refusal under INA § 221(g). This article will review the process of termination and the actions the applicant should take to avoid it.

Basic Procedure

Once the U.S. Citizenship and Immigration Services (USCIS) approves a Form I-130, Petition for Alien Relative, and the beneficiary has indicated they will be consular processing, the agency forwards it to the NVC. When the priority date becomes current in Chart B, Dates for Filing, of the Visa Bulletin, the NVC will notify the beneficiary (now the “applicant”) of visa availability and the necessary next steps: paying the immigrant visa fee, paying the affidavit of support fee, submitting the online DS-260, Immigrant Visa Electronic Application, and uploading various civil documents.

If the applicant fails to apply for an immigrant visa within one year of being notified of visa eligibility, INA § 203(g) authorizes DOS to consider the registration abandoned and to terminate it. In the case of an applicant whose priority date has not yet been reached in Chart A, Final Action Dates, on the one-year anniversary, the NVC will re-send the termination notice when the applicant's priority date is reached and a new one-year period begins.

Before formal termination, DOS will send various notices to the applicant, I-130 petitioner, and attorney/Accredited Representative of record. The first notice is usually a warning that the applicant has failed to act within the required time period, that they need to take certain action, and that termination is possible if they fail to act. It may also include Form DS-2001, Notification of Applicant Readiness, and a response request asking the applicant to confirm their intention to pursue an immigrant visa application. If they no longer wish to pursue it, they will be asked for the reason, such as they have adjusted status; they have received an immigrant visa through another petition; or they are no longer interested in immigrating to the United States.

The second notice, called Termination Letter #1, states that the petition has been terminated. But it also indicates that if the applicant responds within one year of the notice and shows that the failure to act was due to circumstances beyond their control, the petition can be reinstated.

If the applicant fails to request reinstatement within that one-year period, the NVC sends out Termination Letter #2 and then notifies USCIS for petition revocation. This final notice must be sent to the electronic or physical address on file for the applicant and any third party authorized by the applicant to receive notices on their behalf. The NVC or consulate would then destroy the I-130 petition and copies of supporting documents and return any original documents (i.e., birth, death, marriage, divorce certificates) to the petitioner (if filed with the petition), or to the beneficiary or agent (if filed during the application process).

Once a petition has been terminated by the NVC and the petition revoked by USCIS, the petition cannot be used for filing for adjustment of status or consular processing. The petitioner would need to start over and file a new petition for the beneficiary; there is no retention of the original priority date.

Legal Authority and Guidance

INA § 203(g) states:

The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa; but the Secretary of State may reinstate the registration of any such alien who establishes within two years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien’s control.

The regulations at 22 CFR § 42.83 provide the implementation mechanism for INA § 203(g). Section 42.83(a) states that termination occurs if the applicant fails to apply for an immigrant visa within one year after notification of visa availability. Section 42.83(b) applies when the visa is refused under INA § 221(g) and the applicant fails to submit evidence overcoming the refusal within one year. Section 42.83(c) requires that upon termination (whether for failure to apply or to overcome a refusal), the NVC or consular post must notify the applicant and inform them of the right to reinstatement. And section 42.83(d) allows reinstatement if, within two years (counted from the date of failure to apply, to attend the consular interview, or refusal to respond to the 221(g) notice), the applicant demonstrates that the failure was due to circumstances beyond their control.

Section 42.83(e) defines the term “circumstances beyond the alien's control” and it “includes, but is not limited to, an illness or other physical disability [such as natural disaster] preventing the alien from traveling, a refusal by the authorities of the country of an alien's residence to grant the alien permission to depart as an immigrant, and foreign military service.” Based on experience, however, the NVC and the consulates consider other factors and are rather generous in reinstating a termination. But the applicant’s failure to receive the notice of termination because they neglected to notify the NVC or consular post of their change of contact information is not a “reason beyond the applicant’s control” for not pursuing the application. Nor will convenience or a wish not to travel to the visa interview within the one-year period be considered a factor outside of the applicant's control.

The Foreign Affairs Manual (FAM) further clarifies how INA § 203(g) is applied in practice; it is relied upon by the NVC and consular officers in their daily activities. 9 FAM 504.13-2(A)(1) outlines when a case becomes “inactive” and subject to termination. It sets forth four situations where the applicant has:

• Not applied for a visa within one year of notice of visa availability by the NVC. If there is visa retrogression within that year, the case cannot be deemed inactive until there has been a full year of visa availability;
• Failed to appear for the immigrant visa interview on the scheduled appointment date and failed to take further action on the case within one year of the scheduled interview;
• Failed to present evidence to overcome the basis for a refusal under INA § 221(g) within one-year following the refusal; or
• Failed to comply with the Follow-up Instruction Package for Immigrant Visa Applicants or failed to log into their Consular Electronic Application Center (CEAC) account within one year before the case is sent from NVC to consular post, assuming that the case has been current during that time.

The one-year period is extended each time an applicant presents evidence reasonably purporting to overcome the INA § 221(g) ineligibility. The same is true for maintaining yearly contact with the NVC after notice of visa availability and while the applicant is uploading the forms and civil documents needed to become “documentation qualified.” This can be accomplished by sending a notice to the NVC through the Public Inquiry Form. The applicant does not need to take this step if simply waiting for the priority date to become current in Chart A or B or waiting for the NVC to schedule the immigrant visa interview after becoming documentation qualified.

Petition termination does not apply to certain applicants under 9 FAM 504.13-2(A)(2). These include the following:

• Applicants refused under INA § 221(g) for administrative processing;
• Applicants who make a credible assertion that documentation or information is not available within one year of the INA § 221(g) refusal;
• Applicants who are “following to join” the principal applicant;
• Applicants who are awaiting processing of an I-601A provisional waiver application by USCIS;
• Applicants who are refused under a ground of inadmissibility under INA § 212(a); and
• Applicants who are applying to adjust status in the United States.

The last situation where 203(g) does not apply would occur when the I-130 petitioner indicated that the beneficiary would adjust status and the USCIS forwarded the petition to the NVC in error. It could also not apply when beneficiary/applicant initially elected consular processing but filed Form I-485, Application to Register Permanent Residence or Adjust Status, within one year of visa availability. Immigrant visa applicants who later decide they are eligible for adjustment of status need to inform the NVC of their changed intention so that the agency does not commence the 203(g) termination process. Otherwise, an immigrant visa applicant could become eligible for adjustment of status, file an I-485, be approved for lawful permanent residence, and then later receive a notice — in error — of I-130 revocation due to NVC application of 203(g).

Conclusion

Make sure to periodically monitor the progress of clients who are consular processing. Do not let significant time lapse without contact — or at least a notice — after receiving correspondence from the NVC.

Termination pursuant to 203(g) is automatic after one year of inaction and the issuance of the warning notices — whether it's failure to apply after visa availability, failure to respond to a notice, failure to attend a consular interview, or failure to overcome a refusal under § 221(g). Reinstatement is possible, but only within one year of Termination Letter #1 and only if the applicant can show the delay was beyond their control.

If you receive a Notice of Possible Termination, respond promptly and indicate the applicant’s intent to proceed on Form DS-2001, pay the immigrant visa fee, submit Form DS-260, and upload the required civil documents. If the applicant missed the consular interview, request within one year that it be rescheduled. If the failure to attend triggers Termination Letter #1, explain why the failure to attend was due to circumstances beyond the applicant’s control. Termination letter #1 gives you a chance to remedy the situation — but only if you act within its one-year window.