Note: If your visa is denied and the case goes back to USCIS, we strongly suggest you consult an immigration attorney. You will have a very limited opportunity to respond to save the petition. We can advise you no matter where you are in the world. We represent many clients who we never meet. This is different from other areas of law; see our testimonials and contact page for more information.
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When you have a green card interview at the U.S. consulate, you hope your visa will be approved. But sometimes the visa is denied and the file is sent back to USCIS (U.S. Citizenship and Immigration Services). This is called a “consular return” – the consulate returns the file which either reaffirms (confirms the approval) or revokes the petition. In this post I’m only going to discuss the process for immigrant – green card – visas, although this can also happen with some non-immigrant visas.
If a consular officer discovers during the course of a visa interview that the underlying petition should not have been approved, or is no longer approvable, s/he will send it back to USCIS to further consider. According to USCIS, there are five reasons:
- Statutory ineligibility
- Request from USCIS (fraud or other reason) – e.g. if marriage fraud is suspected.
- Automatic revocation or withdrawal – for instance, when the petitioner has died.
- Revocation for “cause”
- Incorrect or missing information
The process is often mysterious, has no specific timeframe, and can be very frustrating for the parties involved and their lawyers. The State Department staff must write a memorandum detailing the reasons for the return to USCIS. Then the file is sent back to the National Visa Center (NVC) which checks to make sure the file is in order. If everything is ok, the NVC sends it back to the USCIS service center that originally approved the petition. The NVC says its normal processing time, if further information is NOT required, is within 15 days.
USCIS then has three options, according to its online information, and additional explanation of each:
- Find that the petition is not revocable and return the petition to DOS with an explanation of the decision not to revoke. Hopefully, the consulate will then approve the visa. For example, if USCIS determines there is no marriage fraud and the couple is eligible, it will reaffirm the petition, return it to the NVC, which then returns it to the consulate. The consulate should not question the bona fides or genuineness of the relationship again unless new evidence comes to light.
- Issue a Notice of Intent to Revoke to the petitioner. For instance, in one case, the consulate believed our client could not petition his biological parents because the client had been adopted by another relative. USCIS sent a Notice of Intent to Revoke to our client, to give him an opportunity to explain why he believed he could sponsor them. USCIS revoked the petitions of the two parents (we eventually succeeded in getting the petition approved and the parent is now in the U.S. with a green card. By the way we never met the client or parent in person; this was all done without meeting.). Another case example occurs when the consulate learns of a disqualifying criminal conviction of the U.S. petitioner in a family-based case. Some offenses, especially sexual offenses against a minor, can completely disqualify the petitioner from petitioning any family member. You can read more about this in our previous post.
- Issue a Notice of Automatic Revocation to the petitioner. This occurs if the petitioner has died. The approval of the petition is automatically revoked, The foreign relative (the beneficiary) can in most cases request humanitarian reinstatement of the petition. See our post on humanitarian reinstatement for more information. No matter how long it’s been since the death – months or years, the petition will be automatically revoked. If the consulate doesn’t learn of the death until the visa interview, it will return the petition to USCIS for revocation at that time. If your petitioner has died, let the government know; it’s not going to do any good to wait until the interview because the petition must be revoked; the consulate has no discretion to approve your visa. Automatic revocation can occur in other cases also, such as when an F2B beneficiary (unmarried child of a green card holder) marries.
The consular return process can take a long time and it can be difficult to know what’s going on while your papers are with USCIS. You can check your case status at their “Check Your Case Status” page. The agency says it tries to handle consular returns on a first in, first out basis. If you receive a Notice of Intent to Revoke (NOIR), you will have 30 days to respond, and USCIS says it tries to respond to the NOIR within 120 days of receipt.
The petitioner should be sure to keep his/her address and email updated with USCIS so that any mail will reach you. If you receive a Notice of Intent to Revoke, or a Revocation, we strongly suggest you consult an attorney, as you will have a very limited opportunity to respond and attempt to save the petition.
To schedule an initial consultation go to our Contact page or email ida@idakeirlaw.com
