After waiting for several years for a petition’s priority date to become current and ready for visa processing, several factors may still result in the termination of an approved petition. This may happen both in the family based and employment based petitions. Below is a letter from a parent of a beneficiary of an approved employment petition seeking clarification on why her daughter’s petition was returned to the U.S. Citizenship and Immigration Services.
Dear Atty. Lou
My daughter’s I-140 (employment petition) was approved in 2007. The employer paid the visa fees since the priority date is already current. But recently when my daughter checked the petition status, the National Visa Center (NVC) told her that her papers were returned to US Citizenship and Immigration Services (USCIS) and the reason is for background check and for extended review.
To my daughter’s surprise, she found out that 16 of those who were petitioned are facing the same problem with the same Petitioner company. I would like to know why this is happening to my daughter’s petition? How long will it take for the USCIS to review and complete an extended background check? Is it possible to re-apply or apply to another company using the same petition? What are my daughter’s options? I look forward to a response.
RM
Dear RM,
As I mentioned, nothing is permanent with an approved petition whether it be based on a petition filed by a family or employer. In family petitions, the death of the petitioner results in the death of the petition as well. Same case with employment petitions, the closure of the business of the petitioner likewise will result in the termination of the employment petition. Other grounds for possible revocation are lack of qualifying relationship. In a spouse petition, the divorce or annulment of the marriage will result in revocation of the petition. The same with employment based petitions where the job offer no longer exists or is withdrawn by the employer, the employment petition is automatically revokes.
I am not particularly aware of the circumstances of your daughter’s petitioner. If several petitions were filed by the petitioner, there is probably an issue of either the existence of the job offer for all the 16 beneficiaries or future employees; or it could probably be just a review check of whether the petitioner’s business is still viable for purposes of paying the required wages. Many other reasons could be raised for the possibility of a revocation. Of course, prior fraud or misrepresentation could also be a ground for revocation especially in cases where there is no actual financial ability to pay the wages on the part of the employer-petitioner.
The fact that the petition was returned by the National Visa Center to the USCIS means that there is a possibility that information is in the possession of the USCIS that raises doubt on the continued validity of your daughter’s petition. What happens after the petition was returned to the USCIS is that the petitioner will receive a letter from the USCIS affording him the opportunity to respond to the issues that may affect validity of the petition. When the petitioner receives this letter, he should respond to it appropriately. Hopefully, the issues that will be raised in the letter may be easily addressed so that your daughter may receive her visa soon.
If you know the contact information of your daughter’s petitioner or their attorney, you may want to inquire directly if they receive a notice from the USCIS. If they receive the letter from USCIS you may want to ask for a copy to determine the cause of the extended review. If everything is addressed without a problem, your daughter will receive her visa. Otherwise, she may wish to seek a different petition through a different employer. She may want to recapture her priority date from the approved petition in order that she does not have to wait long for her new approved petition.
I hope this information is helpful to you.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her principal office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 1 888 930 0808, email at law@tancinco.com or visit her website at tancinco.weareph.com/old. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)
