Back of the line! - but is it legal?

ENTRYLAW Blog - Immigration Attorneys Portland Oregon

I’m going to explain how the immigration service has been unlawfully revoking the approval of petitions for nearly a quarter of a century. The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long. To understand how this has happened, you’ll need to understand some basics of the immigration process.

We have a petition process in the U.S., which allows U.S. citizens and permanent residents to file an immigrant petition for a close relative, and allows a U.S. employer to file a petition for an employee after certain prerequisites are met. The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant visa numbers. In most cases, the priority date is the date the petition was filed, but in cases requiring Department of Labor certification before filing the petition, USCIS uses the DOL filing as the priority date. Congress has established that immigrant visas, and thus green cards, should be given out in order of priority date, so that people whose petitions were filed before others in the same category should be given green cards first.

After USCIS approves the petition, the agency sends it to the State Department when the person is outside the United States. It can be many years and even decades between the approval of an immigrant petition and a visa becoming available. During those years of waiting, an immigrant can check the visa bulletin published by the U.S. Department of State on a monthly basis, or wait to be contacted by the State Department. Since there are no accurate estimates of how long it may take to actually get a green card in a given category, most people wait to hear back from the State Department.

After waiting years or decades, the State Department should ultimately send out a notice by mail and email to let the immigrant know their priority date is coming up for a visa number, and that they can apply. This is called registration for a visa. But the system of notification is far from perfect, and a person’s change in address or email address can result in the person not being notified. Lots of people fail to receive notification.

Because there are some people who, after waiting so many years, decide not to immigrate after all, Congress authorized the State Department to terminate a registration where the immigrant has not contacted the State Department after a year. There is no question that the State Department has been able to terminate registration for the orderly administration of visa issuance since the provision was enacted in 1976, when Congress authorized termination of registration. In 1976, Congress also authorized automatic revocation of the petition itself. Regulations were issued after that allowing not only for the State Department to terminate the person’s registration for a visa, but to also allow the immigration service to revoke the petition, effectively destroying it and the person’s place in line. When that happens, everything is absolutely gone, and the person has to start over. That’s a harsh result. In 1991, however, Congress took away the immigration service’s ability to revoke the petition and take away the person’s place in line. The regulations, however, were not updated, and in the past quarter century, the immigration agency has been revoking petitions based on the law prior to 1991. This is unlawful and unauthorized.

There were good reasons for Congress to disallow the complete destruction of a petition and place in line just because the State Department terminated the person’s registration for a visa. Back in 1975, when Congress was considering what to do with termination of registration and revocation of petitions, the State Department Assistant Secretary for Congressional Relations, Robert McCloskey, wrote a letter dated September 22, 1975 to the House Judiciary Committee Chairman. In that letter, the State Department voiced its opposition to the termination and revocation law being considered by Congress. Here is what the letter said:

“Section 5 (3) would amend section 203(e) by inserting therein provision for cancellation of an alien’s registration on an immigrant visa waiting list under certain circumstances. Under this provision, an alien registered on an immigrant visa waiting list would face cancellation of his registration if he failed to pursue his application within one year after notification that his turn had been reached making it possible for him to do so. The alien would be accorded one additional year during which he could seek restoration of his registration by establishing that his failure to pursue his application had been due to reasons beyond his control. If the alien failed to come forward during the additional year or if he did so but was unable to establish that his failure to pursue had been due to circumstances beyond his control, the cancellation of his registration would become final and any petition approved to accord him an immigrant status would be revoked.

The issue of registrants on immigrant visa waiting lists (often referred to as ‘insurance registrants’) who do not pursue their applications when given an opportunity to do so is a long-standing and difficult one. The presence of such applicants on waiting lists adds to the recordkeeping and other administrative burdens on consular offices abroad and can create false impressions of the magnitude of active demand for immigration. The Department is, therefore, sympathetic with the objective of this proposed amendment. On the other hand, the Department foresees that there may well be difficulties in the implementation of this proposal and that its implementation could itself add to the administrative burdens on consular officers.

For this reason, the Department several years ago established an administrative procedure which achieves the purposes sought by this proposal but without incurring the potential difficulties which this proposal might entail. Consular officers have been instructed to separate all pending immigrant visa applications into two categories – active and inactive. Among those cases considered to be ‘inactive’ are those in which the alien has failed to respond to an invitation to pursue his case within one year after the invitation is sent to him. Records pertaining to ‘inactive’ cases are stored separately from those pertaining to ‘active’ cases and are generally not maintained in the working areas of consular offices. Thus, the administrative burdens associated with maintenance of such records are avoided and there remain only isolated cases in which available storage space is constricted. Furthermore, all summary reports of total registered demand for immigration are maintained by the two categories – active and inactive – and it is thus possible to identify without difficulty total active registered demand for immigration and, thus, to have a meaningful idea of its magnitude.

Since this administrative procedure involves neither physical destruction of records and associated documents nor the loss by an alien of any entitlement under the law, it is our belief that it is preferable to the procedure proposed in section 5 (3) of the bill. We are, therefore, opposed to the enactment of this section.”

So, the State Department was itself opposed to the termination of registration provisions, particularly because it would result in “loss by an alien of any entitlement under the law,” but Congress enacted the restriction in 1976 anyway, although later in 1991, Congress acted to restore a person’s ability to have their visa petition remain intact after State Department terminated registration for the visa.

Digging into the statute, INA Section 203(g) is the current one which went into effect on October 1, 1991, and 203(e) was the statute in existence prior to that date. The old 203(e) read as follows:

“(e) ...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 him of the availability of such visa, but the secretary shall reinstate the registration of any such alien who establishes within two years following notification of the availability of such visa that such failure to apply was due to circumstances beyond his control. Upon such termination the approval of any petition approved pursuant to section 204(b) shall be automatically revoked.”

The new and current 203(g) section has almost identical language except for the last sentence, authorizing automatic revocation. In 1991, the statute was amended to specifically remove that. So that means as of 1991, USCIS had no authority to automatically revoke petitions in cases where the immigrant’s visa registration was terminated. Yet, the automatic revocation regulations were drafted prior to the change, and were never updated, and thus USCIS has been unlawfully revoking the approval of petitions for the past 24 years based on outdated and unlawful regulations.

There is a section which authorizes USCIS to revoke petitions. INA Section 205, states: “The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.”

That section does not, however, authorize automatic revocation. Courts have held that the immigration service cannot automatically revoke petitions, and that “good and sufficient cause” requires something that would have formed the basis for a denial in the first place. The Board of Immigration Appeals, in a case called Matter of Estime, held that petitions can only be revoked based on facts which might have resulted in a denial in the first place. For example, if USCIS approves a case and then discovers later a fraud was committed, then that is good and sufficient cause. Also, if someone does not respond to Department of State fast enough, then the statute authorizes the State Department to terminate their registration with the State Department. But that by no means constitutes a basis for USCIS to then revoke the approval of the petition. There are drastic consequences that result from termination followed by automatic revocation – loss of priority date is the big one.

There is also the case of Singh v. Clinton, in the 9th Circuit, which holds that in order to be effective, the “alien” must be notified of the availability of the visa, which means the beneficiary, and you may well know that NVC has been bad about sending any notice to beneficiaries at all, instead sending the notice to the petitioner. So most terminations are not valid for that reason. But termination of registration can be remedied by paying the visa fee again, and getting the case put back into active status. When USCIS revokes a petition, however, it has far ranging consequences. As I said before, it results in the destruction of the petition, and also in the loss of one’s place in line.

USCIS must immediately stop revoking petitions following a State Department termination of visa registration. Then, the agency needs to update its regulations to be in compliance with the law passed in 1991. If the agency fails to do these things, then the courts should step in and require them to halt the unlawful practice. Longstanding canons of statutory interpretation hold that the regulations cannot do more than the statute allows. Here the regulation does only what the old law allowed, and goes beyond the current law. The USCIS policy here is vulnerable to a legal challenge, and the agency would be wise to update the policy before a judge tells them to.

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