DOS on Visa Applicants and Petition Revocations – July 2001
Posted Jul 20, 2001

Many readers of the MurthyBulletin may be aware that when a person applies for a visa at the consulate, on occasion a Consular Officer returns the underlying petition to the INS Service Center with a memo suggesting that INS revoke the approval. Once the petition has been returned, the only recourse is generally to take up the case with INS. INS issues a notice explaining the reason for the proposed revocation and providing an opportunity to respond. After receiving evidence from the petitioner, INS then decides whether to revoke the approval or reaffirm the petition.

Many people (visa applicants, petitioning employers and relatives, and attorneys, to name a few) have complained that consulates sometimes send petitions back to INS even when the issue in question can be resolved by providing the applicant with an opportunity to present more information. Another problem is that even after the consulate informs the applicant that the petition is being sent back to INS, there can be a long delay before the petition is actually sent to INS.

To address some of these concerns, both in the immigrant visa (IV) and nonimmigrant visa (NIV) contexts, U.S. Secretary of State Colin Powell issued a cable message to consular posts in July 2001. The cable reminds posts that revocation should be used only when there is clear evidence of fraud, misrepresentation, or ineligibility. Under the surprisingly frank heading "Don't sit on cases," the cable also instructs consulates to return cases to INS promptly. Once the decision is made to send the case to INS, it should be sent out no more than a week or two later. DOS and INS are also working jointly on a standardized format for a revocation memo, to streamline the process.

The cable notes that consulates should not readjudicate petitions that have been approved by INS, since the approval of the petition leads to a presumption in favor of eligibility for the visa. Rather, revocation is appropriate only when the Consular 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." The ground for the revocation would arise based on new information that was not known to INS. Revocations should be rare, and the Consular Officer needs to present "solid, factual evidence" as a basis for the revocation.

The Secretary of State warns that the revocation procedure should not be used as a substitute for decision-making at the post. Cases should not be returned merely because they appear to be somewhat suspicious or because they are too complicated. Rather, the consulates should attempt to resolve these types of problems themselves. For example, if more information is needed the Consular Officer can and should request it directly from the visa applicant. If an investigation is warranted in some cases, the anti-fraud unit at the consulate can conduct such an investigation. As many of you will agree, this guidance is long overdue.

In particular, with immigrant visa cases, the July 2001 cable instructs consulates to request any additional information from the applicant to allow the opportunity to supplement the information and resolve any doubts. This method is fairer and more efficient than sending the petition back to INS. The cable also notes such a procedure may also be appropriate for nonimmigrant visa cases but if there is information that was not known to INS showing that the person is not eligible, the petition should be returned to INS.

© The Law Office of Sheela Murthy P.C.