DOS Cable on NIV Revocations
VISAS - INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: PROCESSING REVOCATIONS OF NONIMMIGRANT VISAS
REF: (A) 22 CFR (9 FAM) 41.122 (B) STATE 122693
1. SUMMARY. THIS CABLE REVIEWS THE GENERAL RULES AND
PROCEDURES GOVERNING THE REVOCATION OF NONIMMIGRANT VISAS,
BOTH BY CONSULAR OFFICERS ABROAD AND BY THE DEPARTMENT.
WHEN REVOKING AN NIV, POSTS SHOULD TAKE CARE TO ADHERE TO
THE REGULATIONS AND PROCEDURES SET FORTH IN 9 FAM 41.122.
IF POSTS NEED ADDITIONAL GUIDANCE ON THIS ISSUE, DEPARTMENT
(CA/VO/L/A) WOULD BE HAPPY TO ASSIST. END SUMMARY
CONSULAR REVOCATIONS
2. LEGAL GROUNDS: UNDER 9 FAM 41.122(A), THERE ARE FOUR
CIRCUMSTANCES UNDER WHICH A CONSULAR OFFICER MAY REVOKE A VISA:
-- IF THE ALIEN HAS BEEN FOUND INELIGIBLE FOR A VISA UNDER
ONE OF THE INADMISSIBILITY PROVISIONS OF 212(A);
-- IF THE CONSULAR OFFICER FINDS THAT THE ALIEN IS NOT
ELIGIBLE FOR THE PARTICULAR VISA CLASSIFICATION;
-- IF THE VISA HAS BEEN PHYSICALLY REMOVED FROM THE
PASSPORT; OR
-- UPON ISSUANCE OF AN IMMIGRANT VISA TO THE ALIEN.
3. 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. A CONSULAR REVOCATION MUST BE
BASED ON AN ACTUAL FINDING THAT THE ALIEN IS INELIGIBLE FOR
THE VISA.
4. IF A CONSULAR OFFICER RECEIVES DEROGATORY INFORMATION
ON AN ALIEN OUTSIDE THE CONTEXT OF A PENDING VISA
APPLICATION AND THE INFORMATION IS SUFFICIENT TO RENDER THE
ALIEN INELIGIBLE FOR A VISA, THE OFFICER SHOULD FIRST CHECK
POST'S VISA DATA BASES TO DETERMINE WHETHER THE ALIEN MAY
HAVE A VALID VISA. IF NOT, POST SHOULD ENTER THE ALIEN IN
THE LOOKOUT SYSTEM UNDER THE APPROPRIATE "P" ("QUASI"
INELIGIBILITY) CODE, PENDING SOME FUTURE VISA APPLICATION
BY THE ALIEN, AND SHOULD CREATE THE NECESSARY CAT. I OR II
FILE TO BACK UP THE LOOKOUT ENTRY. IF THE ALIEN DOES HAVE
A VALID VISA, POST SHOULD FOLLOW THE REQUIRED PROCEDURES
FOR PROCESSING A VISA REVOCATION, IN ACCORDANCE WITH THE
PROCEDURES SET FORTH IN 9 FAM 41.122, AS OUTLINED BELOW.
-----------------------------------
PROCEDURES FOR CONSULAR REVOCATIONS
-----------------------------------
5. NOTICE OF INTENT TO REVOKE: 9 FAM 41.122(B) REQUIRES
THE CONSULAR OFFICER TO NOTIFY THE ALIEN OF THE INTENT TO
REVOKE, IF SUCH NOTIFICATION IS PRACTICABLE, AND TO GIVE
THE ALIEN THE OPPORTUNITY TO SHOW WHY THE VISA SHOULD NOT
BE REVOKED. CONOFFS SHOULD NOTE THAT THIS IS A
NOTIFICATION OF INTENT/INTENT TO REVOKE AND, AS SUCH, IT
SHOULD BE DONE PRIOR/PRIOR TO ACTUAL REVOCATION. 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.
6. A PRIOR NOTIFICATION OF INTENT TO REVOKE WOULD NOT BE
CONSIDERED PRACTICABLE IF, FOR INSTANCE, THE POST DID NOT
KNOW THE WHEREABOUTS OF THE ALIEN, OR IF THE ALIEN'S
DEPARTURE IS BELIEVED TO BE IMMINENT, SUCH THAT THERE IS
INSUFFICIENT TIME TO PROVIDE NOTIFICATION. IN CASES WHERE
THE ALIEN IS EASILY CONTACTABLE AND TRAVEL IS NOT IMMINENT,
PRIOR NOTICE OF INTENT TO REVOKE WOULD NORMALLY BE
REQUIRED, UNLESS THE CONSULAR OFFICER HAS REASON TO BELIEVE
THAT A NOTICE OF THIS TYPE WOULD PROMPT THE PARTICULAR
ALIEN TO ATTEMPT IMMEDIATE TRAVEL TO THE U.S.
7. ALTHOUGH CONSULAR DECISIONS REGARDING VISA ELIGIBILITY
ARE GENERALLY IMMUNE FROM JUDICIAL REVIEW, THE DEPARTMENT
HAS BEEN SUCCESSFULLY SUED IN AT LEAST ONE CASE WHERE THE
POST FAILED TO FOLLOW THE REQUIRED PROCEDURES FOR
NOTIFICATION. IT IS ALWAYS IMPORTANT TO TAKE CARE TO
FOLLOW THE NOTIFICATION REQUIREMENTS.
8. REVOCATION: ONCE THE DECISION TO REVOKE IS MADE, THE
CONSULAR OFFICER MUST COMPLETE THE REQUIRED CERTIFICATE OF
REVOCATION (9 FAM 41.122 EX. II) AND MAKE THE APPROPRIATE
ENTRY IN CLASS. AS A CONSULAR REVOCATION IS A FORMAL
ADJUDICATION OF ELIGIBILITY, POSTS SHOULD USE A DEFINITIVE
REFUSAL CODE, RATHER THAN MERELY A "PP (QUASI) LOOKOUT
ENTRY. (THIS DISTINCTION IS IMPORTANT BECAUSE CATEGORY 1
REFUSAL CODES PASS INTO THE INS LOOKOUT SYSTEMS, WHEREAS
MOST CATEGORY 1 "P" CODES DO NOT.)
9. PHYSICAL CANCELLATION OF VISA: IF THE REVOKED VISA IS
AVAILABLE, THE CONSULAR OFFICER MUST WRITE OR STAMP
"CANCELED" ACROSS THE VISA AND SIGN AND DATE IT. IF THE
VISA IS PHYSICALLY CANCELED PRIOR TO THE ALIEN'S DEPARTURE
FOR THE U.S., THERE IS NO NEED TO REPORT THE REVOCATION TO
THE DEPARTMENT, UNLESS THE REVOCATION INVOLVES AN A, G, C-
2, C-3, NATO, DIPLOMATIC, OR OFFICIAL VISA. SEE 9 FAM
41.122(E).
10. PROCEDURE TO FOLLOW WHEN VISA CANNOT BE CANCELED: IF
THE CONSULAR OFFICER DOES NOT HAVE ACCESS TO THE VISA SUCH
THAT PHYSICAL CANCELLATION IS NOT POSSIBLE, POST MUST
NOTIFY LOCAL TRANSPORTATION CARRIERS OF THE REVOCATION (SEE
SAMPLE LETTER AT EX. I TO 9 FAM 41.122). POST MUST ALSO
REPORT THE REVOCATION TO THE DEPARTMENT (CA/VO/L/A) SO THAT
INS MAY BE NOTIFIED. IN ADDITION, IF POST KNOWS THE POE
WHERE THE ALIEN INTENDS TO APPLY FOR ENTRY, POST SHOULD
ATTEMPT TO NOTIFY THE POE DIRECTLY. AS WITH ANY
REVOCATION, POST MUST COMPLETE THE CERTIFICATE OF
REVOCATION AND MAKE THE APPROPRIATE CLASS ENTRY.
CASES REQUIRING REFERRAL TO THE DEPARTMENT
11. ALIEN ALREADY HEADED TO OR IN U.S.: IN NO CASE SHOULD
A CONSULAR OFFICER ABROAD REVOKE THE VISA OF AN ALIEN
BELIEVED TO BE IN THE U.S. OR BELIEVED TO HAVE BEGUN AN
UNINTERRUPTED JOURNEY TO THE U.S. INSTEAD, THE CONSULAR
OFFICER SHOULD IMMEDIATELY INFORM THE DEPARTMENT OF THE
DEROGATORY INFORMATION AND APPARENT GROUNDS OF
INELIGIBILITY, PROVIDE THE INFORMATION REQUIRED IN 9 FAM
41.122 PN7, AND REQUEST THAT DEPARTMENT CONSIDER REVOKING
THE VISA. IF THE DEPARTMENT DECIDES TO EXERCISE ITS
AUTHORITY TO REVOKE IN SUCH A CASE, THE REVOCATION ONLY
BECOMES EFFECTIVE UPON THE ALIEN'S NEXT DEPARTURE FROM THE
U.S.
12. IF AN INS PORT INSPECTOR, OR OTHER USG OFFICIAL,
CONTACTS A POST ABROAD AND REQUESTS THAT THE CONSULAR
OFFICER REVOKE THE VISA OF AN ALIEN WHO HAS ALREADY ARRIVED
AT THE POE, THE POST SHOULD ADVISE THE REQUESTER THAT
CONSULAR OFFICERS ABROAD ARE NOT PERMITTED TO REVOKE VISAS
OF SUCH ALIENS, EVEN IF THE ALIEN HAS NOT YET BEEN
ADMITTED. THE REQUESTER SHOULD INSTEAD BE ADVISED TO
CONTACT THE VISA OFFICE, CA/VO/L/A.
13. POSTS SHOULD NOT REQUEST REVOCATION OF A ONE-ENTRY
VISA IF THE ALIEN IS ALREADY IN THE U.S. AND HAS ALREADY
USED THE ONE ENTRY HE/SHE WAS ACCORDED, AS THE VISA IS NO
LONGER VALID ANYWAY. POSTS IN SUCH CASES MAY, HOWEVER, ASK
VO TO PASS THE DEROGATORY INFORMATION TO INS FOR
APPROPRIATE ACTION, AND SHOULD MAKE THE APPROPRIATE "PP"
(QUASI) ENTRY IN CLASS. IF THE ALIEN REAPPLIES FOR A VISA
AT A LATER DATE, THE ENTRY CAN BE UPGRADED TO A DEFINITIVE
REFUSAL CODE, IF APPROPRIATE, OR CLOK-ED OUT, IF THE ALIEN
ESTABLISHES HIS/HER ELIGIBILITY.
14. PER REF (B), CONSULAR OFFICERS SHOULD CONSULT WITH THE
DEPARTMENT PRIOR TO UNDERTAKING ANY VISA REVOCATION THAT
MAY HAVE POLITICAL, PUBLIC, OR LAW ENFORCEMENT
IMPLICATIONS. EXAMPLES OF SUCH CASES INCLUDE VISA
REVOCATIONS OF HIGH-LEVEL FOREIGN GOVERNMENT OFFICIALS OR
REVOCATIONS THAT MAY AFFECT OR IMPEDE ONGOING OR POTENTIAL
U.S. LAW ENFORCEMENT INVESTIGATIONS OR PROSECUTIONS. POSTS
SHOULD DIRECT CABLES ON SUCH CASES TO CA/VO/L/A (FOR NON-
SECURITY INELIGIBILITIES) OR CA/VO/L/C (FOR SECURITY-
RELATED INELIGIBILITIES), AND TO THE APPROPRIATE COUNTRY
DESK, WITH INFO COPIES TO OTHER RELEVANT OFFICES (E.G.,
CA/P, L, INL, ETC.)
15. IF THE GROUND OF INELIGIBILITY ON WHICH THE CONSULAR
REVOCATION IS TO BE BASED REQUIRES DEPARTMENT CONCURRENCE,
THE CONSULAR OFFICER MUST FIRST OBTAIN DEPARTMENT
CONCURRENCE IN THE INELIGIBILITY FINDING BEFORE PROCEEDING
WITH VISA REVOCATION.
DEPARTMENT REVOCATIONS
16. UNDER INA 221(I), THE SECRETARY OF STATE MAY REVOKE A
VISA AT ANY TIME, IN HER DISCRETION. THAT AUTHORITY HAS
BEEN DELEGATED TO THE DEPUTY ASSISTANT SECRETARY FOR VISA
SERVICES. DEPARTMENT REVOCATIONS ARE NOT SUBJECT TO THE
SAME RESTRICTIONS AS CONSULAR REVOCATIONS.
17. MOST DEPARTMENT REVOCATIONS INVOLVE CASES WHERE A
CONSULAR OFFICER ABROAD HAS MADE AN INELIGIBILITY FINDING
BUT THE OFFICER IS UNABLE TO REVOKE THE VISA BECAUSE THE
ALIEN IS ALREADY IN THE U.S. HOWEVER, THE DEPARTMENT HAS
THE AUTHORITY TO REVOKE VISAS OF ALIENS LOCATED OUTSIDE THE
U.S., AS WELL. MOREOVER, THE DEPARTMENT CAN REVOKE A VISA
ON PRUDENTIAL GROUNDS, EVEN IF THE DEROGATORY INFORMATION
IS NOT SUFFICIENT TO SUPPORT AN INELIGIBILITY FINDING. THE
DEPARTMENT USUALLY TAKES THIS ACTION ONLY WHEN THERE IS
SUBSTANTIAL QUESTION ABOUT THE ALIEN'S CONTINUING
ELIGIBILITY FOR A VISA, SUCH THAT THE ALIEN SHOULD BE
REQUIRED TO REAPPLY FOR A VISA AND ESTABLISH HIS/HER
ELIGIBILITY BEFORE A CONSULAR OFFICER.
18. THE DEPARTMENT IS NOT REQUIRED TO NOTIFY THE ALIEN OF
A REVOCATION DONE PURSUANT TO THE SECRETARY'S DISCRETIONARY
AUTHORITY. HOWEVER, THE DEPARTMENT DOES INFORM INS OF THE
REVOCATION TO ENSURE THAT THE ALIEN IS UNABLE TO ENTER ON
THE VISA. THUS, WHILE THE ALIEN MIGHT NOT NECESSARILY
RECEIVE IMMEDIATE NOTICE OF A DEPARTMENT REVOCATION, HE/SHE
WILL BE STOPPED AT THE PORT-OF-ENTRY, AT WHICH POINT THE
FACT OF REVOCATION WOULD BECOME CLEAR.
INS REVOCATIONS
19. 22 CFR (9 FAM) 41.122(H) SETS FORTH THE CIRCUMSTANCES
UNDER WHICH AN IMMIGRATION OFFICER MAY REVOKE A VISA.
UNDER THIS REGULATION, AN INS OFFICER MAY REVOKE A VISA BY
PHYSICAL CANCELLATION UNDER ANY OF THE FOLLOWING
CIRCUMSTANCES:
-- THE ALIEN OBTAINS AN IV OR ADJUSTMENT TO LPR STATUS;
-- THE ALIEN IS ORDERED EXCLUDED OR DEPORTED (REMOVED);
-- THE ALIEN HAS BEEN NOTIFIED BY A POE INSPECTOR THAT
HE/SHE APPEARS TO BE INADMISSIBLE AND THE ALIEN WITHDRAWS
HIS/HER APPLICATION FOR ADMISSION;
-- THE ALIEN IS GRANTED VOLUNTARY DEPARTURE;
-- A 212(D)(3)(A) WAIVER PURSUANT TO WHICH THE VISA WAS
ISSUED HAS BEEN REVOKED;
-- THE VISA IS PRESENTED AT THE POE BY AN IMPOSTOR; OR
-- THE VISA HAS BEEN PHYSICALLY REMOVED FROM THE PASSPORT.
ALBRIGHT
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12.30.99