After USCIS approves an employment, K-1 fiancée, or marriage petition, the beneficiary applies for a visa at a consulate. The approval of an employment-based petition serves as prima facie evidence of the beneficiary’s qualification for the visa. Yet, more and more consular officers are taking the opportunity to impermissibly readjudicate the petition; substituting their own judgment for that of USCIS; and referring the petition back to USCIS for revocation. For fiancée and marriage petitions, consular officers are supposed to apply a “reasonable person” standard in evaluating the bona fides of a relationship. Yet more and more consular officers are exercising overzealousness in reviewing these petitions and sending them back to USCIS for revocation.
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. For nonimmigrant visas, the consul may state: “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 H-1B visa”; “she was deceitful when she obtained a B visa at the consulate with the intention of finding a job in the US and then after arriving in the US, changed status to H-1B after finding a job”. In the immigration context of approved employment petitions, the consular suspicions are similar: for an EB-3 worker, there may be suspicions about the legitimacy of the job offer, the worker’s qualifications or ability to speak English; for an EB-2 national interest waiver, the consul may question whether the waiver of the job offer requirement is truly in the national interest; for an EB-11 individual with extraordinary ability, there may be concerns whether the applicant is “elite’; for an EB-5 investor, the consul may raise questions about whether income used to fund the investment in the US was earned or obtained in a lawful fashion.
What are the legal standards governing Petition Revocation for a Marriage or Fiancée Petition?
A consular officer is authorized to recommend an approved K-1 fiancée or marriage petition for revocation only if a reasonable person would believe that the claimed relationship is not bona fide. For example, a consular officer may claim that the photographs of the two appear to be “staged” or point to other indicators of fraud: there was no wedding reception; the US citizen only visited his bride one time; the visa applicant did not know important details about the US citizen’s life; they do not speak a common language; a large disparity of age; difference in cultural and ethnic background; family or friends unaware of the marriage; or the US citizen filed other such petitions.
What is the Petition 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 nonimmigrant 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 employment-based petitions) or with the Board of Immigration Appeals (for marriage petitions).
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. In some situations where a consular officer has already referred a case back to USCIS, it may make sense to just submit a new petition, addressing the consular allegations in the new petition. This can save substantial time.
Because of the limited time USCIS affords to a petitioner to respond to a Notice of Intent to Revoke, timely action is imperative. A consular recommendation for revocation or Notice of Intent to Revoke can impact an ability to obtain a visa, even many years later.
Please contact us to discuss your situation.