DOS Addresses Petition Revocations
R 130616Z JUL 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
UNCLAS STATE 121801
E.O. 12958: N/A
TAGS: CVIS, CMGT, KFRD
SUBJECT: GUIDANCE ON PETITION REVOCATIONS
REF: AIRGRAM M-240
1. SUMMARY: From time to time, most posts have occasion to return IV and petition-based NIV petitions to the approving INS 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 INS 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 INS for revocation. This is a positive
practice from our perspective, since as a general rule petitions should only be returned to INS 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 INS 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 INS 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 INS 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 INS.
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." INS 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 INS 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, INS 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 INS 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 INS' 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 INS 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(b), 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 INS 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
INS, 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 INS 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 INS 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 INS to develop revocation memo guidelines
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10. CA/VO/F/P and CA/FPP are currently working with INS 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 INS' evidentiary
requirements and thus most likely lead to a successful
guidelines which posts can use in preparing effective
revocation memos that will satisfy INS' 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.
POWELL