With all the delays and backlog in connection with waiting for or scheduling your immigrant visa interview, it is easy and natural to sit back and become complacent. Once a person’s petition has been approved by the US Citizenship and Immigration Center (USCIS) and they receive a notice that it has been transferred to the National Visa Center (NVC), a person may sit back and wait until they receive some notice that it is time for them to apply for a visa.
Even when the priority date is current and the visa is available, some people still do nothing, believing that the next step is for the NVC or the embassy to keep track of the case and remind them that it’s time to apply.
But there are several strict deadlines that must be met, and if the deadline passes, the visa applicant or their family members could be out of luck. For example:
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• The Child Status Protection Act (CSPA) has a strict one-year deadline for a child to “seek to acquire” a visa, starting from when the visa first becomes available or the priority date is current. If more than one year passes and the child has not pursued his or her visa, they could be out of luck and not eligible under the CSPA.
• If the NVC sends notification to apply for a visa and the applicant fails to do so within one year, the entire case could be terminated and everyone under that petition would be out of luck.
When it comes to these types of deadlines, the law states that it is not the NVC’s or the embassy’s duty to remind you. If these deadlines come and go, you may be out of luck. You cannot argue that you were sitting and waiting to hear from the NVC or the embassy, and that’s the reason you missed the deadline. You were supposed to be monitoring your case and priority date on your own.
In fact, I’ve had many CSPA cases where the NVC sent out the notice more than one year after the visa was available. In that case, a child who was aging out missed the one-year “sought to acquire” requirement. If you try to argue that you missed the deadline because the NVC sent the notice after the one-year deadline, that will not be effective. Your child would be out of luck.
That is why it is important that if you are under petition, you must monitor your priority dates on the monthly visa bulletin. (I post the priority dates every month in my immigration column, on my website and on my Facebook page.) If the priority date is already current, or even close to being current, and you have not yet heard from the NVC, you should consult with an attorney to make sure your case is on track and so that you can already start applying.
Also, if your case was denied for missing a deadline, you should consult with an attorney, who can evaluate if your case or a child’s CSPA eligibility could be saved or revived. But the important thing is to keep track of your case, and if the priority date is already current, don’t just sit back and do nothing.
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