DOS Cable on Petitions Returned to INS by Post

Ref: 22 CFR 42.43 and Notes Thereto

1. Due to recent inquiries from several posts, the visa office believes it might be useful to reiterate the procedures for challenging an INS reaffirmation of a petition previously returned to INS by post.

2. Note 1.1 to 22 CFR 42.43 Notes that it is the Consular Officer's responsibility to review rather than readjudicate petitions. The approval of a petition is prima facie evidence that the alien beneficiary is entitled to the status granted. Unless a petition was clearly approved in error, in order to return a petition to INS, the Consul must have knowledge or a reason to believe that the beneficiary is not entitled to the status, based on evidence INS did not have available at the time of the initial adjudication.

3. Note 8 to 22 CFR 42.43 states that in a situation where INS reaffirms a petition which has been returned, and the Consul has no additional factual evidence to submit to support his or her belief that an alien is not entitled to status, the Consul shall process the case to conclusion.

4. However, under Note 9 to 22 CFR 42.43, in the rare case where the Consular Officer disagrees with the INS decision to uphold the validity of the petition, the Consular Officer shall send the entire case to the Department (CA/VO/L/A) for review and discussion with INS/CO. Such referrals should be rare, however, since the burden of proof still rests with INS and protracted delay without sufficient reason is not equitable.

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