Upon approval of a petition, the beneficiary of the petition, generally, has to apply for a visa at a U. Similarly, consular officers have the authority to return petitions to USCIS for revocation where fraud, misrepresentation, or ineligibility if likely to lead to revocation.
Upon receiving recommendation to revoke from a consulate, USCIS has the option to either reaffirm the approval of the petition and return it back to the consulate, or to issue a Notice of Intent to Revoke to give the petition an opportunity to respond to the consulate findings. Specifically, VSC indicates that consular returns are currently backlogged at 6 months or longer; cases involving H-1B extensions receive more immediate attention.
Atlanta Immigration Lawyers
VSC emphasizes it is working with DOS to better coordinate DOS transmissions when petition is returned to the VSC, including more detailed information on issues presented at the consulate that may not be apparent when the case is being adjudicated at the VSC.
VSC hopes that improved coordination with DOS, along with the recent addition of 40 adjudicators to work consular return cases, will decrease consular return processing times. Upon issuing a Notice of Intent to Revoke, VSC stated that it would consider providing applicants with either a copy of the return, redacted if necessary, or specific information provided by the consulate that it believes.A consular officerthe Secretary, or a Department official to whom the Secretary has delegated this authority is authorized to revoke a nonimmigrant visa at any time, in his or her discretion.
A provisional revocation is subject to reversal through internal procedures established by the Department of State. Upon reversal of the revocation, the visa immediately resumes the validity provided for on its face. Provisional revocation shall have the same force and effect as any other visa revocation under INA iunless and until the revocation has been reversed.
Neither the provisional revocation of a visa nor the reversal of a provisional revocation limits, in any way, the revocation authority provided for under INA iwith respect to the particular visa or any other visa. A consular officerthe Secretary, or any Department official to whom the Secretary has delegated this authority may provisionally revoke a nonimmigrant visa while considering information related to whether a visa holder is eligible for the visa. The automatic provisional revocation pursuant to this paragraph b 3 shall be automatically reversed upon compliance with EVUS requirements set out at 8 CFR partsubpart B, as confirmed by receipt of a notification of compliance.
Unless otherwise instructed by the Departmenta consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department 's Consular Lookout and Support System CLASSthe visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued.
This paragraph c does not apply to provisional revocations under paragraph b 3 of this section. The failure or inability to physically cancel the visa does not affect the validity of the revocation. An immigration officer is authorized to revoke a valid visa by physically canceling it in accordance with the procedure described in paragraph d of this section if:. Please help us improve our site! No thank you. Foreign Relations Chapter I. Refusals and Revocations Section Revocation of visas.
CFR prev next.Occasionally, the revocation process occurs without proper notice to the beneficiary and consequently is contrary to law. Here, all hope is not lost. Visa petitions can take years and even decades after approval to become current. In that time, circumstances change for petitioners and beneficiaries. Petitioners may no longer wish to sponsor beneficiaries. Conversely, beneficiaries may no longer wish to immigrate. The law intends to erase the backlog of presumably unwanted petitions.
However, too often beneficiaries experience revocation by default, and not by choice. Alternatively, they should designate a representative they trust to receive communications from the NVC. Often this will be an attorney, but could be a family member or friend.
O Visa Petition Approval and Being on O1, O2, or O3 Status
That way they will not need a notice to tell them when the petition is current. The exception must be claimed within two years of the original notification of visa availability—in other words, within one year after revocation was authorized by law.
Where this exception does not apply, the revocation decision should be analyzed according to the law. The law authorizing revocation specifies that the notice of availability of the visa petition must go to the alien, i. When the beneficiary does not receive such notice, various relief options may be, but are not necessarily, available.
Overcoming revocation presents a challenge. Thus, attempts at overcoming revocation should include evidence of how and why the beneficiary did not receive notice. Even recovering evidence that a visa petition once existed can be problematic. Former attorneys or other family members may need to be consulted. In addition to presenting argument and evidence that revocation was unlawful, the petitioner may need to work with USCIS to reconstruct the revoked immigrant visa petition.
Alternatively, a new petition may need to be filed along with a request to recapture the earlier priority date. Recapturing the earlier priority date is not permitted when the earlier petition was properly revoked; but, this provision should not apply if revocation was improper.
Finally, a lawsuit in district court may be available. When notice goes to the petitioner, attorney, or possibly even an old address for the beneficiary, the beneficiary has not received notice as, strictly-speaking, required by law. The merits of any lawsuit depend on a variety of factors. Sympathetic facts do help, but under no circumstances would a lawsuit be proper where the beneficiary received proper notice, was legally and physically able to act and failed to do so.In this article, we will examine the petition approval process and rules of status for O1 aliens of extraordinary ability or extraordinary achievement, O2 accompanying aliens, and O3 spouses and children of O1 and O2 aliens.
Before reading this article, please see our full articles on the eligibility requirements and petition documentation requirements for O1 aliens [ see article ] and O2 aliens [ see article ].
Under 8 C. This period cannot exceed 3 years. The three-year limitation means that the USCIS cannot approval a petition for a period in excess of three years, even if that period is requested by the petitioner. This is made explicit at 8 C. The petitioner will have the right to appeal the denial in accordance with 8 C. Under DOS regulations at 22 C. However, 9 FAM However, please note that the day grace periods are discretionary. See 81 FRJan. If the petitioner continues to employ the beneficiary, it must file an amended Form I, Petition for a Nonimmigrant Worker, explaining the changes.
This regulation states that in the case of an artist or entertainer, the petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition. An O2 alien may only change employers in conjunction with the O1 alien whom he or she was granted status to accompany. In the case of a traded professional O1 athlete, 8 C. Within that day period, the new organization must file a Form I on behalf of the alien. If the new organization fails to file the Form I in that period, the employment authorization will cease.
If the Form I is timely filed, the O1 athlete will be deemed to be in valid O1 status until the petition is adjudicated. The beneficiary is no longer employed by the petitioner in the capacity specified in the petition; 2.
The statement of facts contained in the petition was not true and correct; 3. The petitioner violated the terms or conditions of the approved petition; 4.
The petitioner violated the requirements set forth in the statutes and regulations for O nonimmigrant status; or 5. The petitioner may submit evidence in rebuttal of the grounds within 30 days of the date on the notice. On January 17,new regulations went into effect providing for a limited-use day grace period for an O1 nonimmigrant whose O1 employment ceases.
The grace period also applies to O3 dependents.The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long.
We have a petition process in the U. The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant visa numbers. In most cases, the priority date is the date the petition was filed, but in cases requiring Department of Labor certification before filing the petition, USCIS uses the DOL filing as the priority date.
Congress has established that immigrant visas, and thus green cards, should be given out in order of priority date, so that people whose petitions were filed before others in the same category should be given green cards first. It can be many years and even decades between the approval of an immigrant petition and a visa becoming available. During those years of waiting, an immigrant can check the visa bulletin published by the U.
Department of State on a monthly basis, or wait to be contacted by the State Department. Since there are no accurate estimates of how long it may take to actually get a green card in a given category, most people wait to hear back from the State Department.
After waiting years or decades, the State Department should ultimately send out a notice by mail and email to let the immigrant know their priority date is coming up for a visa number, and that they can apply. This is called registration for a visa. Lots of people fail to receive notification. Because there are some people who, after waiting so many years, decide not to immigrate after all, Congress authorized the State Department to terminate a registration where the immigrant has not contacted the State Department after a year.
There is no question that the State Department has been able to terminate registration for the orderly administration of visa issuance since the provision was enacted inwhen Congress authorized termination of registration.
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InCongress also authorized automatic revocation of the petition itself. When that happens, everything is absolutely gone, and the person has to start over. The regulations, however, were not updated, and in the past quarter century, the immigration agency has been revoking petitions based on the law prior to This is unlawful and unauthorized.
Back inwhen Congress was considering what to do with termination of registration and revocation of petitions, the State Department Assistant Secretary for Congressional Relations, Robert McCloskey, wrote a letter dated September 22, to the House Judiciary Committee Chairman.
In that letter, the State Department voiced its opposition to the termination and revocation law being considered by Congress. Here is what the letter said:. Under this provision, an alien registered on an immigrant visa waiting list would face cancellation of his registration if he failed to pursue his application within one year after notification that his turn had been reached making it possible for him to do so.
The alien would be accorded one additional year during which he could seek restoration of his registration by establishing that his failure to pursue his application had been due to reasons beyond his control. If the alien failed to come forward during the additional year or if he did so but was unable to establish that his failure to pursue had been due to circumstances beyond his control, the cancellation of his registration would become final and any petition approved to accord him an immigrant status would be revoked.
The presence of such applicants on waiting lists adds to the recordkeeping and other administrative burdens on consular offices abroad and can create false impressions of the magnitude of active demand for immigration. The Department is, therefore, sympathetic with the objective of this proposed amendment. On the other hand, the Department foresees that there may well be difficulties in the implementation of this proposal and that its implementation could itself add to the administrative burdens on consular officers.
For this reason, the Department several years ago established an administrative procedure which achieves the purposes sought by this proposal but without incurring the potential difficulties which this proposal might entail. Consular officers have been instructed to separate all pending immigrant visa applications into two categories — active and inactive. Thus, the administrative burdens associated with maintenance of such records are avoided and there remain only isolated cases in which available storage space is constricted.
Furthermore, all summary reports of total registered demand for immigration are maintained by the two categories — active and inactive — and it is thus possible to identify without difficulty total active registered demand for immigration and, thus, to have a meaningful idea of its magnitude.
Since this administrative procedure involves neither physical destruction of records and associated documents nor the loss by an alien of any entitlement under the law, it is our belief that it is preferable to the procedure proposed in section 5 3 of the bill. We are, therefore, opposed to the enactment of this section. Digging into the statute, INA Section g is the current one which went into effect on October 1,and e was the statute in existence prior to that date.An I, Petition for Alien relative, can be automatically revoked under different circumstances.
Revocation can occur if the petitioner withdraws the I, if the petitioner or beneficiary dies, upon legal termination of a marriage upon which the I is basedif an unmarried son or daughter of a lawful permanent resident marries, or if the lawful permanent resident petitioner loses his or her status apart from being naturalized.
When filing for a family member, whether as an immediate relative or a family-based preference category, it is important to remember that there is a deadline to apply for a green card after the I is approved.
Before we give you specific examples, it is important to understand the general process, especially when adjusting status interviewing in the U. If the USC petitioner and green card applicant are in the U. Many clients choose to do this as opposed to file the I and I together if they entered without inspection, have unlawful presence, have criminal convictions, or are otherwise inadmissible. As long as the I petitioner is not subject to the Adam Walsh Act and have proven a legitimate relationship to the green card applicant, the I will be approved.
Once approved, the clock begins on adjusting status. Now let us give you two client cases. In the first one, the couple retained an attorney to file the I as an immediate relative.
The green card applicant entered without inspection EWI. The attorney filed the I which was approved in September of The I approval notice read:. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of status. The evidence indicates that he or she is not eligible to file an adjustment of status application…Because the person for whom you are petitioning is not eligible to adjust, we have sent the approved petition to the Department of State National Visa Center NVC …NVC processes all approved immigrant visas and which consular post is the appropriate consulate to complete visa processing.Case Returned to USCIS - What Now?
NVC will then forward the approved petition to that consulate. Since the foreign national was not inspected and admitted into the U. She had to depart the U. This cured the entry without inspection. In December ofwe filed her green card application in the U. The I had not been revoked in over 6 years.
The couple remained married, the petitioner was still alive, the couple still lived together. In a family-based preference case, after the I is approved, the case is transferred to the NVC for the visa number to become available. The petition was approved in August of Thankfully, the I was not cut-off by any of these actions.
Note that had he married before his father naturalized, the I would have been cut-off since there is no visa category for married son of a lawful permanent resident. We have sent the original visa petition to the Department of State National Visa Center…NVC processes all approved immigrant visa petitions that need consular action.
Since the visa petition was filed under a family-based preference category, unlike an immediate relative category, the petition was subject to a quota. Our client came to us wanting to adjust status.
He entered without inspection, but was protected under i. Since the I approval was so old, we contacted the U. Consulate to verify whether the I was revoked. This was a major blow to our client. We decided to conduct a further investigation. After several hours of review, we discovered that the revocation was in error.
We reviewed the applicable visa bulletins and noticed that the priority date did not become current for the first time until ! We have a basis to file a request to reinstate the I based on this error.
The petition was approved in June of U Regulations no longer distinguish between invalidation and revocation in cases when it is determined that the bearer of a visa is ineligible. U There are four circumstances under which you may revoke a visa:. U A consular officer does not have the authority to revoke a visa based on a suspected ineligibility, or based on derogatory information that is insufficient to support an ineligibility finding, other than a revocation based on driving under the influence DUI.
A consular revocation must be based on an actual finding that the alien is ineligible for the visa.
U Under no circumstances should a consular officer abroad revoke a visa when the alien is in the United States, or after the alien has commenced an uninterrupted journey to the United States, other than a revocation based on driving under the influence DUI. U Although the decision to revoke a visa is a discretionary one, you should not use this authority arbitrarily.
When practicable, you must:. The notice of intent to revoke a visa affords the alien the opportunity to demonstrate why the visa should not be revoked. An after-the-fact notice that the visa has already been revoked would not be sufficient, unless prior notice of intent to revoke was found not to be practicable in the particular case.
In cases where the alien can be contacted and travel is not imminent, prior notice of intent to revoke the visa would normally be required, unless the consular officer has reason to believe that a notice of this type would prompt the alien to attempt immediate travel to the United States. You must also date and sign this action.
If located at a post other than the one at which the visa was issued, the title and location of the post should be written below the signature.
You should proceed to revoke that visa as well, provided the grounds for revoking the first visa apply to any other visa the alien may hold, or if independent grounds for revocation apply. In the latter case, you must, if practicable, give the alien an opportunity to rebut or overcome that ground s of ineligibility. Such a report could form the basis for revoking the visa, initiated by the issuing post or by the reporting post, with the concurrence of the issuing post.
U See 9 FAM U You should be alert to the political, public relations, and law enforcement consequences that can follow a visa revocation, and should work with the Department to ensure that all legally available options are fully and properly assessed. The revocation of the visa of a public official or prominent local or international person can have immediate and long-term repercussions on our political relationships with foreign powers and on our public diplomacy goals in a foreign state.
Consultation both within the mission and with the Department may result in a decision that the Department, rather than the consular officer, should undertake the revocation, since Department revocations pursuant to the Secretary's revocation authority provide more flexibility in managing the relevant issues.
In the rare cases in which advance consultation is not possible, you should inform the Department as soon as possible after the revocation.
Precipitant action must be avoided in cases involving foreign government officials and other prominent public figures.
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