The Impact of Visa Retrogression
On Healthcare Workers:
Duplicate Immigrant Visa Fees
It can take several years for healthcare workers to obtain permanent residence in the U.S. The wait is especially impactful for registered nurses. Although the U.S. Department of Labor has long recognized the shortage of registered nurses in the U.S. and allow employers to bypass the labor certification process, the visa category for foreign nurses is lumped into the same quota category as all other professionals and skilled workers. Thus, it can take several years for a foreign nurse to obtain permanent residence.
Yet, while most of the other professionals and skilled workers have the advantage of waiting in the U.S. (and simultaneously working), the foreign nurse must generally wait outside the U.S. until the entire permanent residence process is completed. And the wait is substantial. For example, the foreign nurses from India that are able to get permanent residence now are those who initially filed their applications before April 2002 - more than 9 years ago. Similarly, the wait for foreign nurses from China is backed up to applicants who filed 7 years ago (before May 2004) while the wait for foreign nurses from the Philippines and all other countries is backed up to applicants who filed almost 6 years ago (September 2005).
But waiting an unbelievably long time to get to the U.S. is not the only impact that visa retrogression has on foreign nurses. They also experience costly immigrant visa fees - often duplicate payments because of the National Visa Center's failure to follow its own rules and policies.
Historically, the Department of State has charged an application fee for visa processing, namely, $335 per person. The Department of State increased the fee in July 2010 to $794 per person. The Department of State appeared to give some allowance to applicants whose cases were previously billed by the Department of State by honoring the previous invoice and not requiring the increased fee from those applicants. The exact statement from the DOS website states:
Applicants whose fees are collected by NVC, both prior to and after July 13,2010, will be required to pay only the fees in effect on the day they are billed. Applicants billed by NVC at the current rate will not be required to pay the difference between the current and new fees.
However, in reality the National Visa Center is requiring payment of the new fee. They are doing so, perhaps inadvertently, through an indirect route of inactivating cases and billing the applicants the new fee, even when the applicants have already paid the previous fee of $335. Thus, some foreign nurses are being subjected to the higher fee when they should have to pay the older, lower fee and others are being subjected to "duplicate" immigrant visa fees.
The immigrant fee fiasco is a result of the National Visa Center's failure to follow its rules and policy about case abandonment. The general rule is that a repayment of fees is required if a case has been inactive for more than one year unless the inactivity was due to visa retrogression. Furthermore, a repayment of fees is required if a new I-140 is filed but not required if an "amended I-140" is filed (such as to reflect a merger). Specifically, the Department of State (DOS) said the following in an official meeting with the American Immigration Lawyers Association (AILA):
AILA: Members report receiving new fee bills when the fees have been previously paid. When exactly are new fees required for a DS-230 Process?
DOS: New fees are required if a case has been inactive for more than one year
(i.e. neither the agent of choice, petitioner, nor beneficiary has contacted NVC) and a visa number is available.
AILA: When retrogression has intervened?
DOS: NVC does not collect a new fee if retrogression in the cutoff date has occurred, unless that case was inactive for more than a year prior to the retrogression.
AILA: When an employer has amended I-140 (such as to reflect a merger)?
DOS: NVC will not request a new fee for an amended I-140 as long as the file is active and there is a visa available. If a new I-140 is filed, then new fees will be requested.
Thus, the foreign national forfeits a visa fee payment and must repay visa fees if the case has been inactive for more than one year while a visa number was available or if a new I-140 is filed. However, a foreign national does not forfeit a visa fee payment if the case has been inactive for more than a year due to retrogression or if an amended I-140 is filed (to reflect a change such as a merger), the file is active and there is a visa number available.
The problem is that NVC is not following the rules. While the Department of State says a new fee is not required if the inactivity for more than a year is due to visa retrogression, the Department of State is acting otherwise. There are cases where NVC is requiring repayment of the visa fee under the contention that the beneficiary did not make contact with the NVC within one year. BUT, the beneficiary's lack of contact with the NVC was because visa numbers were not available ---- the exact situation where NVC stated that contact is not necessary.
Consider an example of an actual case.
September 2009: NVC sent a fee bill for $400 each for the applicant and derivatives
October 2009: The nurse/applicant paid the fee to NVC
October 2009 to present: Visa number for May 19, 2006 priority date for EB3 Philippines remains unavailable
November 2010: NVC sent letter to nurse/applicant saying there hasn't been contact in the last year
December 2010: NVC sent a fee bill for $794 each for each applicant and derivatives
NVC continues to insist on payment of the entire additional $795 immigrant visa fee
Here's another example - a case where the nurse submitted the immigrant fee and documents within one year when visas were available but then visa numbers retrogressed and now the NVC is requesting repayment of visa fees based upon abandonment.
June 2005: The visa number became current through May 2005 legislation that created extra 50,000 visas for Schedule A occupations
June 2005: NVC sent immigrant fee bill to beneficiary.
March 2006: The nurse paid immigrant fee bill (within the one year period)
March 2006: NVC sent the instruction packet to the nurse with the list of documents needed
May 2006: The nurse submitted the DS-230, police certificate and remaining documents to the NVC
November 2006: NVC sent a letter to the beneficiary notifying of visa unavailability. The letter said in part:
Visa numbers are not presently available for your visa category. You need not check with us further unless you need to report a change of address or a change in your personal situation that may affect your entitlement to an immigrant visa.
July 2010: (While the visa number was still unavailable): NVC notified beneficiary that the case has been terminated and new fees are required. The correspondence said in part:
Because a period of one year passed without contacting the NVC (by phone or mail), all submitted fees and documents expired. Instructions for submitting fees and forms will be sent under separate cover.
July 2010: NVC invoiced the beneficiary for $794 fee payment.
January 2011: Visa number became available
NVC continues to insist on repayment of the visa fee, now in the increased amount of $794 per applicant.
The failure of NVC to follow its own rules is creating problems for all concerned. Many beneficiaries are acquiescing in repaying visa fees while others are delayed by many months in getting their immigrant visas as they wait for NVC to resolve the issue. Attorneys are bringing this issue to the attention of NVC on an individual case basis and getting canned responses from NVC that are not resolving the issue on an individual basis, much less a widespread basis.
The NVC, no doubt, is spending wasted time and resources ---- without addressing the problem.
We challenge the NVC to resolve this issue of repayment of immigrant visa fees. The NVC has said that it "does not collect a new fee if retrogression in the cutoff date has occurred, unless that case was inactive for more than a year prior to the retrogression." It's time for the NVC to actually do what it says.
About The Author
Sherry L. Neal is a Partner at Hammond Law Group, LLC in Cincinnati, Ohio. She advises employers and foreign nationals on employment immigration issues. She can be reached at sln@hammondlawfirm.com
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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