Petition Revocation in the Wake of Bouarfa v. Mayorkas: What It Means for Families and Employers

Posted on December 28, 2024

Having your approved petition sent back to USCIS because a consular officer suspects a sham marriage, relationship, or job offer is traumatic and tragic, particularly as many of those referrals are based on brief interviews and little evidence of a sham. The consequences can be devastating. Now, the Supreme Court has taken away one arrow in the quiver of petitioners in challenging such actions. It recently ruled in Bouarfa v. Mayorkas that federal courts lack jurisdiction to hear cases involving the revocation of the approvals of immigrant visa petitions. This means that the only recourse lies with USCIS and the Department of State, not the courts.

To understand the implications of this decision, consider a common example:

A U.S. citizen files an I-130 immigrant petition for their spouse, seeking to bring them to the United States as an immediate relative. USCIS approves the petition, and the spouse attends an immigrant visa interview at a U.S. embassy or consulate abroad. During the interview, however, the consular officer suspects that the marriage is not bona fide and refers the case back to USCIS for further review.

USCIS decides to not reaffirm the approval and instead issues a Notice of Intent to Revoke (NOIR), citing the consular officer’s concerns about a sham marriage. The U.S. citizen then responds and provides additional evidence to demonstrate the legitimacy of the relationship. However, USCIS determines that the evidence is insufficient and formally revokes the petition’s approval.

Frustrated by this outcome, the U.S. citizen seeks to challenge USCIS’ decision in federal court, believing the agency’s actions to be arbitrary and not supported by the evidence. Previously, some petitioners have successfully brought such cases to court. However, the Supreme Court’s ruling in Bouarfa v. Mayorkas now forecloses this avenue entirely, leaving the U.S. citizen without judicial recourse to challenge the revocation of the approval.

The result has far-reaching consequences, including:

1. No Judicial Oversight: Petitioners can no longer turn to the courts to challenge USCIS’ decision to revoke an approved petition. This leaves them at the mercy of administrative processes, with no external checks on potential agency errors or abuses. One potential workaround – to file a new petition – will mean going to the back of the processing line.

2. Increased Burden on Petitioners: To avoid consular suspicion and referral, when the petition is initially filed, it should be documented as strongly as possible, with convincing evidence of the claimed relationship (e.g., spouse, family member) or qualifications of the beneficiary (e.g., education and work experience). An ounce of prevention is truly worth a pound of cure. If there is a consular referral after the immigrant visa interview and USCIS issues a NOIR, then responding to a NOIR will now carry even greater weight. Petitioners must present the strongest possible evidence at the NOIR stage, as there will be no second chance to argue their case in court. A failure to respond to the NOIR can also carry dire ramifications: the entry of a permanent bar against the beneficiary, for example, for a misrepresentation under Section 212(a)(6)(C)(i).

3. Potential for Consular Overreach: In cases involving consular referrals, petitioners may feel that they are unfairly penalized by consular officers who lack a full understanding of their circumstances. Without judicial recourse, addressing such concerns becomes even more challenging.

4. Employer-Sponsored Cases: Employers seeking to sponsor foreign workers may also face heightened risks. Revocations of the approvals of I-140 employment-based petitions are also subject to this ruling, meaning businesses must be prepared to navigate USCIS’s revocation process meticulously.

Given these challenges, it is more critical than ever for petitioners to consult with experienced immigration attorneys to professionally prepare I-130 and I-140 petitions; proactively prevent consular referral of petition revocation; and when necessary, prepare a thorough and compelling response to a NOIR. Whether you are a U.S. citizen fighting to reunite with your spouse or an employer navigating the complexities of workforce immigration, understanding and addressing potential pitfalls early on is key to success.

If you or someone you know is facing a petition revocation, don’t hesitate to contact us.