Revocation of Approved Visa Petitions
by Atty. Reuben S. Seguritan
A US citizen or US permanent resident may file an I-130 Petition for Alien Relative to bring their relatives to the United States. These are known as family-based petitions. A US company or employer or agent of the employer may file an I-140 Immigrant Petition for Alien Worker to bring an alien to the United States to work. These petitions are known as employment-based petitions. The US citizen, US permanent resident or US company or employer filing the petition is called the petitioner. The relative or alien worker that will benefit from the petition is called the beneficiary.
When the United States Citizenship and Immigration Services (USCIS) approves the I-130 or I-140 petition, the United States Department of State (DOS) may grant the family-based or employment-based immigrant visa to the beneficiary and his qualified derivatives. The DOS will conduct an interview of the beneficiary and his qualified derivatives as part of the visa process. If the DOS discovers during the interview process that the petition should not have been approved, or can no longer be approved, the petition may be referred back to the USCIS.
The referred petition should be accompanied by a memorandum explaining the reasons the approved petition should be revoked. The USCIS will then either decide that the petition is not revocable and return the petition to the DOS with an explanation of why the petition should not be revoked, or issue a notice of intent to revoke (NOIR) to the petitioner, or issue a notice of automatic revocation to the petitioner.
The notice of automatic revocation will be sent if the petitioner or beneficiary dies or the beneficiary fails to timely file an application for an immigrant visa. The automatic revocation on these grounds will be effective as of the date of the notice of automatic revocation. If any of the grounds for a notice of automatic revocation occurs while the petition is still being processed, the USCIS will send the notice of automatic revocation to the consular office having jurisdiction over the visa petition and to the petitionerís latest address on file.
The USCIS will send a NOIR to the petitioner with the reasons and explanation as to why the approved petition should be revoked. The petitioner will be given a reasonable period of time to submit evidence from the date of the NOIR and must show why the petition should not be revoked. The petitioner should answer within the time given. The petitioner could ask the USCIS for an extension of time but within the original time period set. The acceptable reasons for asking for an extension are because he needs time to obtain documents from abroad or other meritorious reasons. The granting of the request for extension of time is at the discretion of the USCIS.
After the petitioner replies to the NOIR, the USCIS will determine if the petition approval should be revoked or not. The petitioner will receive a notice informing him of the USCIS decision. If the USCIS decides that the approved petition should not be revoked, then the petition will be returned to the DOSís National Visa Center (NVC). The NVC will then send the petition to the consular office. The consular office may accept the petition as valid and adjudicate the visa application to completion, or present new evidence to the USCIS that was not previously considered in its decision. If the consular office sends the new evidence, then the USCIS will determine whether such evidence supports revocation of the petition.
If the petitioner does not present evidence sufficient to overcome the basis for the revocation, or he fails to timely respond, the petition will be revoked and a notice of revocation on Form I-292 will be issued. The petitioner may appeal the decision of revocation just as if the petition had been denied originally.
All appeals to the Board of Immigration Appeals (BIA), including appeals to revocations, must be filed within 30 days. Revocation appeals that are submitted to the USCIS Administrative Appeals Office (AAO) must be filed within 15 days. However, most courts have determined that a final decision by USCIS to revoke an immigrant visa petition is not reviewable.
When a consular office returns an immigrant visa petition to the USCIS for reconsideration and possible revocation, he will typically deny the visa application on the basis of temporary refusal of immigrant visa pending a USCIS review of the returned petition. The consular officer may also deny the visa application on other grounds. If the USCIS reaffirms the approval of the petition, the USCIS will send the petition back to DOS, at which point the consular officer will either accept the petition as valid and adjudicate the visa application to completion, or present USCIS with new evidence that was not previously considered. When a DOS consular officer denied an immigrant visa application, he will provide the beneficiary with a refusal letter listing the section of law under which the visa was refused.