Mrs. S., an Indian national, has worked in California on an H-1B visa since 2003. Her husband, who was in H-4 status, returned to India and applied to renew his H-4 visa at the consulate in Chennai. His application was denied under 221(g), and remained pending for more than 7 months. Mrs. S. then retained us, and within a couple of weeks, Mr. S. received his visa and was reunited with his wife in the US.
After USCIS approves an employment,
When a petition is referred back to USCIS with a consular recommendation for revocation, great hardship, expense, and inconvenience result for the visa applicant and spouse, fiancé, or employer in the United States. Sometimes, this can lead to a permanent bar to entry to the United States for the applicant. Only proactive, aggressive action by the petitioner, applicant and lawyer can forestall and combat consular overstepping of authority.
What are the legal standards governing Petition Revocation for an Employment Petition?
A consular officer is authorized to recommend an approved employment petition for revocation only in limited circumstances: 1) fraud; or 2) the discovery of new, material information that could have affected USCIS’ adjudication of the petition. The regulations governing consular action state that referring petitions back to USCIS should be done “sparingly”. Yet consular officers usually cite to “new, material information” to justify their action, not consulting with the petitioner or applicant or giving them the opportunity to rebut the “new” information. The consular rationales for revocation — real or arbitrary — can vary: “she does not appear in a Google search and so cannot have the ‘extraordinary ability’ needed to qualify for an O visa”; “it appears that he is just using the L visa to facilitate his own immigration”; “she does not have the experience to work in that occupation and should not receive an
What are the legal standards governing Petition Revocation for a Marriage or Fiancée Petition?
A consular officer is authorized to recommend an approved
What is the Revocation Process?
As a result of a consular recommendation for revocation, 6 months or more can be lost. The consular officer will send a memorandum recommending revocation to the State Department’s Kentucky Consular Center or National Visa Center, which will then forward it to the original USCIS office. The memorandum will cite to the reasons that the consular officer is recommending revocation. Once USCIS receives the memorandum, it will review the memorandum and the original petition. USCIS will then either 1) reaffirm the approval of the petition or 2) issue a Notice of Intent to Revoke (NOIR) to the petitioner.
If USCIS reaffirms the approval of the petition, it will notify the Department of State. For employment petitions, USCIS issues an amended approval notice, with a validity period commencing on the date of issuance. The beneficiary can then apply for the visa again at the consulate. Usually, the consular officer at that point will defer to the reaffirmed approval and issue the visa.
IF USCIS agrees with the consular officer that the allegations have merit, USCIS issues a Notice of Intent to Revoke to the petitioner. USCIS sets out the reasons why it plans to revoke the initial approval, citing to the information provided by the consular officer. The petitioner has 30 days to respond. After USCIS receives the response, it will either reaffirm the approval or revoke the approval of the petition. If it revokes the approval, the petitioner can file an appeal with the Administrative Appeals Office (for
In the case of fiancée petitions, a recommendation of revocation is tantamount to a denial because the initial petition approval is valid only for four months, i.e., the petition becomes null and void with the lapse of the validity period.
How does White & Associates help?
Many lawyers are under the impression that USCIS approval of a petition obliges the consular officer to issue the visa, and thus do not adequately prepare their clients for the visa interview. They tell their clients to obtain the “visa stamp” at the consulate. Unfortunately, this lack of preparation can have devastating consequences: both for the visa applicant and the US employer, fiancée or spouse. The visa applicant can be stranded outside the US for months, years or even permanently.
We specialize in preparing applicants for work, fiancée, and marriage visa interviews. We assist in interceding when problem issues come up at an interview. We intervene when a visa application has been pending for a long time. And we report problem consular officers to the Department of State when consular overzealousness or inaction affects an applicant’s ability to obtain the visa in a timely fashion. We aggressively challenge Notices of Intent to Revoke issued by USCIS and petition revocations, and after USCIS reaffirmation of the approval, ensure that the visa is issued promptly.
Because of the limited time USCIS affords to a petitioner to respond to a Notice of Intent to Revoke, timely action is imperative.
Please contact us to discuss your situation.