SUBJECT: GUIDANCE ON PETITION REVOCATIONS


1. SUMMARY: From time to time, most posts have occasion to return IV and petition-based NIV petitions to the approving USCIS service centers to request reconsideration and revocation. Posts should be judicious about returning petitions, since the revocation process is lengthy and the evidentiary standard that must be met to sustain a petition revocation is relatively high. Posts should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation, or ineligibility for status is only suspected but cannot be clearly established. When posts have determined that a petition merits a revocation request, the case should be returned to the approving service center quickly to avoid lengthy delays in processing. To help posts with this process, CA/VO/F/P and CA/FPP are currently working with USCIS to develop a standard petition return memo and guidelines for writing effective revocation memos. END SUMMARY.

Be judicious in returning petitions

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2. Several months ago, CA/VO/F/P conducted an informal survey of posts'' petition revocation processes to determine post practices and needs in regard to revocation requests. We learned that, for the most part, posts return relatively few petitions to USCIS for revocation. This is a positive practice from our perspective, since as a general rule petitions should only be returned to USCIS when fraud or misrepresentation or ineligibility for status can be clearly established or when the petition merits automatic revocation because of such circumstances as the death of the petitioner.

3. 9 FAM 42.43 provides general guidance on preparation of memos to USCIS requesting revocation of IV petitions. Separate sections in 9 FAM 41 on petition-based NIV categories (H, K, L, O, P) provide similar guidance on when to return those petitions. In all cases the guidance Amphasizes that USCIS approval of a petition is prima facie evidence of the applicant''s entitlement to visa status, and that consular officers should not attempt to readjudicate petitions. Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to USCIS at the time of petition approval. The FAM cautions that posts should seek revocations "sparingly," to avoid inconveniencing the petitioners and applicants and to avoid creating an additional administrative burden for USCIS.

4. Providing solid evidence of fraud or misrepresentation in a petition relationship may not be achievable in many cases, particularly those involving marriage or relationship fraud. The FAM guidance on revocations makes this point on several occasions -- posts seeking revocations must show the "factual and concrete reasons for revocation." USCIS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law. In the case of sham marriages, for example, 9 FAM 42.43 N2.2 notes that USCIS requires at the least either documentary evidence that money changed hands between the petitioner and beneficiary or factual evidence that would convince "a reasonable person" that the marriage was entered into solely to evade immigration laws. Without such evidence, USCIS will be unlikely to obtain a petition''s revocation if a petitioner chooses to contest a notice of intent to revoke.

No "deep sixing"

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5. Posts should not return petitions to USCIS based on mere suspicion or as a substitute for making a decision at post. If the evidence of fraud, misrepresentation, or ineligibility for status is strong enough to lead to a likely revocation, returning the petition would be warranted. However, if post believes the evidence is not likely to lead to a revocation and returning the petition would be a wasted exercise, the petition should not be returned. Returning cases that are only suspect or that appear too complex to figure out is not appropriate and only increases USCIS'' administrative burden and prevents the applicants and petitioners in these cases from obtaining the timely decision on their petitions to which they are entitled.

Use 221(g) with IV cases

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6. Please keep in mind the differences between revocation of the petition and denial of the visa application. In the absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa, assuming the alien is otherwise qualified, or if further investigation is warranted and holds a potential for resolving post''s concerns, use a 221(g) refusal to obtain additional information. Posts should be generous in allowing applicants every opportunity to supplement their applications following a 221(g) refusal. Many consular sections polled by VO reported that they usually use 221(g) rather than petition return to USCIS as the most effective way of handling cases in which fraud is suspected and where further Information-gathering is likely to be able to resolve the doubts one way or the other.7. VO supports this use of 221(g) with IV petitions, as returning a petition based on suspicion alone is not appropriate, and providing the applicant an opportunity to address post''s doubts is a fairer way of dealing with suspect cases. We encourage posts to use 221(g), except in those IV cases in which fraud, misrepresentation, or ineligibility for status can be clearly established. 221(g) allows petitioners and beneficiaries to supplement the initial application and in many cases overcome the refusal. Per 22 CFR (9 FAM) 42.83(, if an applicant fails to present evidence purporting to overcome the basis for the 221(g) refusal within one year of the refusal, post can initiate 203(g) termination procedures (9 FAM 42.83 N1.2).

8. 221(g) may also be appropriate for NIV petition cases. However, posts should note that there is no 203(g) termination process for NIV cases. If post obtains information not known to USCIS at time of petition approval which indicates that an applicant is not eligible for the visa category covered by the petition, the petition should be returned to the approving service center in accordance with FAM guidelines pertaining to the relevant visa category.

Don''t sit on cases

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9. Once post has decided that a case warrants return to USCIS, the memo requesting revocation should be prepared expeditiously and the case returned as quickly as possible. Keeping a case for a lengthy period because officers do not have time to prepare the revocation memo is not fair to the applicant or petitioner, only invites more work in the long run in the form of congressional inquiries and calls about the case, and can even lead to litigation. It places an unfair burden on the petitioner and beneficiary, who in many cases would choose to contest the revocation but cannot do so until USCIS has received the file and sent a notice of intent to revoke to the petitioner. As a rule of thumb, posts should not allow petitions earmarked for return to USCIS to languish more than a week or two. Our e-mail poll revealed that by-and-large posts are aware of this need for quick processing and are preparing revocation memos with dispatch.

Working with USCIS to develop revocation memo guidelines

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10. CA/VO/F/P and CA/FPP are currently working with USCIS to develop a consular return cover worksheet which posts will be able to use in returning petitions meriting revocation to the approving service centers. We are also developing guidelines which posts can use in preparing effective revocation memos that will satisfy USCIS'' evidentiary requirements and thus most likely lead to a successful guidelines which posts can use in preparing effective revocation memos that will satisfy USCIS'' evidentiary requirements and thus most likely lead to a successful revocation. We hope to be able to post this guidance on the Intranet later this summer.

11. Minimize considered.

thanks

welcome

Here's more info from the Electronic Code of Federal Regulations (e-CFR), Title 22: Foreign Relations, current today as of April 12, 2007:

§ 42.81 Procedure in refusing individual visas.

(a) Issuance or refusal mandatory. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer must either issue or refuse the visa under INA 212(a) or INA 221(g) or other applicable law. Every refusal must be in conformance with the provisions of 22 CFR 40.6.

( Refusal procedure. A consular officer may not refuse an immigrant visa until Form DS-230, Application for Immigrant Visa and Alien Registration, has been executed by the applicant. When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrative relief is available. Each document related to the refusal shall then be attached to Form DS-230 for retention in the refusal files. Any documents not related to the refusal shall be returned to the applicant. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal has not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.

Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.

(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 66 FR 10364, Feb. 15, 2001; 71 FR 34522, June 15, 2006]

good job GEG!!!!

chi

Thanks, sis! I'm working hard with a couple of lawyers on this and reading everything. That's why I've been so quiet lately.

This is a 2001 memo from Sec. Colin Powell, Secretary of State at the time, to all consulates that I intend to follow up regarding the statutes and regs cited:

UNCLASSIFIED TELEGRAM June 12, 2001

To: ALL DIPLOMATIC AND CONSULAR POSTS - ROUTINE
Origin: VO
From: SECSTATE WASHDC (STATE 102813 - ROUTINE)
TAGS: CVIS, CMGT
Captions: None
Subject: REMINDER REGARDING VISA REFUSAL PROCEDURES
Ref: A) 99 STATE 185477 (b.) 97 STATE 114760 © 93 STATE 213853 (D) 9 FAM 41.102 AND 121

1. SUMMARY. Questions often arise about visa refusal procedures and the necessity of interviews. While we in CA will explore the possibility of expanding the circumstances under which consular officers may adjudicate visa applications without interview, I am sending this message because I want to remind all consular officers of the current rules that must be followed for refusals of visas. It is important that consular officers follow all statutory and regulatory provisions in the issuance and refusal of visas. While we are under constant pressure to find management solutions to the ever-present circumstance of decreasing resources, we must exercise caution and work within the fundamental legal framework that governs visa adjudication law as we create new ways of performing our responsibilities. This is not simply a matter of traditionalism or resistance to change. CA takes all recommendations for streamlining seriously. In evaluating suggestions to streamline the visa process, one of our primary considerations is whether the suggestion is consistent with the consular officer's unique role in adjudicating visa applications and with the principles that underpin the doctrine of consular nonreviewability. We are wary of any practices or procedures that may encroach on or in any way potentially jeopardize this doctrine, and it is partially for this reason that we have decided that mail-in applicants should not be denied on substantive grounds without an interview.

2. It is essential that all consular officers adhere strictly to the following key rules regarding visa refusal procedures, even as we continue to consider suggestions for streamlining the process:

-- Consular officers should not refuse visa applicants on substantive grounds without first giving the applicant an opportunity to be interviewed in person.

-- When refusing a visa application, consular officers should inform the applicant of the section of the law under which the visa was refused, as well as the underlying factual basis for the refusal, unless the facts are classified or SBU.

-- When the refusal is based on substantive grounds (i.e., other than 221(g)), the explanation for the refusal should be done in person at the time of interview. END SUMMARY


NO REFUSALS WITHOUT AN OPPORTUNITY TO BE INTERVIEWED

3. As stated in 9 FAM 41.121 N2, it is the policy of the Department of State to give visa applicants every reasonable opportunity to establish their eligibility to receive a visa. This policy is in keeping with the spirit of American justice and fairness.

4. In line with this policy, consular officers should not refuse a visa application on substantive grounds (i.e., grounds other than 221(g)) without first calling the applicant in for an interview. This policy is based on the fundamental principle of fairness that the alien should be given an opportunity to be heard and to personally make his/her case to a consular officer.

5. This policy also helps ensure that our visa determinations are sound and as accurate as possible and reflects the unique ability of the consular officer to resolve questions of credibility based on first-hand interview of the applicant. As noted in 9 FAM 41.121 PN1.2(h)(3), in cases where nonimmigrant intent is an issue, consular officers should rely primarily on the interview itself and only minimally on supporting documentation. While review of the OF-156 is an indispensable step in assessing a visa applicant's eligibility, when it comes to judging credibility -- a key issue in cases in which immigrant intent is an issue -- there is simply no substitute for a personal interview. Without an interview, consular officers could end up refusing qualified aliens who may have appeared weak on paper but could have overcome the presumption of immigrant intent through a strong showing of credibility at the time of interview.

6. 22 CFR (9 FAM) 41.102 requires most aliens seeking nonimmigrant visas to apply in person and be interviewed by a consular officer. Although 22 CFR 41.102(a) allows posts to waive personal interviews in certain classes of NIV cases, the principal purpose behind this regulation is to permit waiver of the interview when it is clear that the alien is eligible for the visa and an interview would be an unnecessary inconvenience. As noted in 9 FAM 41.102 PN1, the OF-156 was designed to enable consular officers to determine whether a visa may be issued, repeat, issued without an interview. It was not designed with the intent that it alone would be sufficient to establish that an alien was not eligible for a visa and could therefore be refused without an interview.

7. For the above reasons, posts should not use the authority of 22 CFR 41.102(a) to waive visa interviews in order to refuse a visa applicant under INA 214 (b.) or some other substantive ground. Rather, per 9 FAM 41.102 PN2, if a consular officer is in doubt concerning the visa eligibility of an NIV applicant whose application was submitted by mail or messenger, the officer shall request the alien to appear in person.

8. We recognize that this policy has workload implications and also may engender complaints from some aliens who may travel great distances for interviews, only to be refused. Nonetheless, we believe that fundamental fairness requires us to follow this policy. We are however exploring modification of this policy which, while remaining true to the underlying principle of fairness, may provide for avenues to reduce some workload in this area. Such modifications will require regulatory changes. Posts will be informed as soon as any such amendments are implemented.


PERSONALLY INFORM THE APPLICANT OF THE GROUND OF REFUSAL

9. INA 212(b.) and 22 CFR (9 FAM) 41.121 and 42.81 require consular officers to inform the applicant of the provision of the law upon which a refusal is based. In addition, as noted in refs B and C, it has been the long-standing policy that consular officers generally should also inform the applicant of the factual basis underlying the refusal. However, the underlying factual information should not be divulged to the applicant if the information is classified or SBU, or if it was obtained from another agency and the agency has not authorized release of the information.

10. As with the no-refusal-without-an-interview policy, the policy of informing the applicant of the facts underlying the denial is rooted in notions of fundamental fairness and also serves to ensure that our visa decisions are based on a thorough and accurate understanding of the facts. From a fairness perspective, the applicant, where possible, ought to be told the factual basis for the finding so that he understands the decision and has a reasonable opportunity to rebut it. In addition, if the consular officer's decision is based on an erroneous understanding of the facts, there is a significant likelihood that the factual error will be corrected by the alien when the consular officer informs the applicant of the officer's factual findings, thus increasing the likelihood that a proper decision will be made.

11. 9 FAM 41.121 PN1.2 states that when an alien is found ineligible to receive a visa, the consular officer should inform the alien orally of the basis for the refusal, in addition to the required written notice. Per Ref A, while we are willing to permit consular officers to forego an oral explanation in cases involving non-substantive refusals under 221(g), we do not believe it is appropriate to substitute a written explanation for an in-person oral explanation in cases where the refusal is based on 214(b.) or some other substantive ground. As noted above, such refusals require a personal interview, and the required oral explanation of the basis for the refusal can be made at the end of the personal interview.

12. While providing a thorough oral explanation for the basis of the refusal may take a little more time, in the long run it saves work for everyone. Inadequate (or no) explanations for refusals merely prompt subsequent written and phone inquiries from the applicant, his/her family, members of Congress, and others. Many such inquiries are directed to VO, which must then contact post to find out the basis for the refusal. Regardless of whether post is contacted by VO or by the inquirer directly, post ends up having to provide a report on the basis for the refusal, and in most instances the time spent on such follow-up queries, at post and in the Department, far exceeds the time it would have taken to provide a sufficient explanation at the time of interview.

13. We know that many of you would like to be able to further streamline the NIV application process and rely to a greater extent on mail, drop box, and other procedures that do not require personal appearance. We agree that this is a very worthy goal, and we fully support you in your efforts to streamline the process for visa issuances. Visa refusals, however, require extra protections, and there are limits to how far we can go in that area. While we understand that prohibiting substantive refusals by mail will have workload implications, we want to be as fair as we can to those applicants we refuse, and we do not want to risk consular nonreviewability for the sake of efficiencies in processing. It is in light of these constraints that we are reminding posts to continue following current refusal procedures, as we examine possible regulatory changes that might address some of the workload concerns while still ensuring that refused applicants are given full and fair consideration of their cases. Warm regards.

POWELL

thats a good one thanks

[quote name='Green-eyed girl' date='Apr 15 2007, 03:33 PM' post='839880']
This is a 2001 memo from Sec. Colin Powell, Secretary of State at the time, to all consulates that I intend to follow up regarding the statutes and regs cited:

can you post the link GEG?

chi

I dunno. I didn't get it from a website. It was forwarded to me from a file, but I know it's valid.

This passage really caught my eye. I suspect we were targeted for a denial before the interview. In hindsight, there were missing pieces from our petition that might have raised suspicion. Idir's interview was about 15-20 minutes - longer than a lot of interviews and in the end we get a 221g that asks for more evidence of communication.

Some have told me that perhaps it was just a CO who was more strict than others, but I am not convinced. Chi (or was it Kiya) said we were very lucky to have a chance to submit more evidence. I am not convinced it was luck either.

Having watched so many couples go through this process, many successes, some denials, there seem to be patterns as to why things happen. If the consulate believes the grounds of ineligibilty can not be over come with additional evidence, then they return the petition according to the regulations above. I know many insist that if they could have just shown the emails and phone records, shown their stacks of evidence, the consulate would have believed them. But this regulation seems to suggest that the consulate is making the decision that the quality of this evidence is not going to meet the standard for overcoming the burden of proof. So even if the consulate took the time to look at it, it is likely the decision would not change because they needed more than just phone records etc to counter the evience already submitted and the results of the interview.

For us, it appears there may have been suspicion, but what transpired during th interview was enough to convince the CO that Idir could bring more in to strengten the case before a denial was issued. According to this regulation anyway, it appears this way. Because I know in great detail what happened during the interview, the questions that were asked and the conversation that went on between the Co and Idir, It just makes soooo much sense.

Best post of the day right here! I hope everyone reads it.

Very, very interesting.
My fiance and I were denied just last week, 4/12 with the explanation:
221G-Recommendation for Revocation and the CO told my fiance that he was just doing this for immigration benefit.
The CO was also the Assistant Chief Consular Office, so the chances of him admitting he was 'wrong' are slim to none.
I really made a BIG stink and contacted every government official I could think of to stop my petition return.....appealed to Chief Consul of the Embassy all the way up to President Bush and, in between, names of any high-level official in Foreign Affairs, NVC, USCIS to no avail. I begged and pleaded for a chance to submit evidence AND quoted their own policies and memorandums to them!!! We were ignored. The Embassy was h*ll-bent on getting our petition our of their offices and headed back to the U.S. They were successful.
So, now what?
Hire an attorney?
Wait it out until we get the NOID?
Cancel the petition and re-file?
When is someone going to put a stop to this madness?

I'm headed over the Albania to see my fiance in 10 days

Any advice will be GREATLY appreciated.

Sorry to hear that. There are a few really good threads on here to point you in the direction of what u can do now. There is a pinned topic in this thread to start with.

You will get the help you need, I am 100% sure about that.

Limah