Responding to a Notice of Intent to Rescind an Employment-Based I-485 Approval

In some cases, USCIS approves an employment-based Form I-485, Application to Register Permanent Residence or Adjust Status, but later determines that an immigrant visa number was not available when the application was approved. USCIS may then issue a Notice of Intent to Rescind (NOIR), even if the applicant did nothing wrong and the approval resulted from an agency error. Because rescission can have serious consequences, anyone who receives a NOIR should promptly seek advice from a qualified immigration attorney. This article discusses common rescission scenarios and offers practical guidance on addressing the issue and moving one’s immigration case forward.

What is a Notice of Intent to Rescind?

A NOIR is a formal notice stating that USCIS intends to take back a prior grant of adjustment to lawful permanent resident status. Under the rescission procedures, USCIS may initiate a case when it concludes that the person was not actually eligible for adjustment when the green card was approved. One possible reason is that an immigrant visa was not immediately available on the approval date.

Does USCIS have a deadline for starting rescission proceedings?

In general, USCIS must issue the NOIR within five years after the person’s adjustment to permanent resident status. Timely service of the notice ordinarily permits the rescission proceeding to continue even if the five-year period later expires. More information is available in the USCIS Policy Manual chapter on the Rescission Process.

How much time does a person have to respond?

The regulation generally provides 30 days from service of the NOIR to submit a written answer under oath and to request a hearing before an immigration judge. The notice itself should be reviewed carefully because the response date and submission instructions are critical. If no timely answer is filed and no hearing is requested, USCIS may rescind the adjustment without an administrative appeal.

Does receiving a NOIR immediately terminate permanent resident status?

A NOIR states USCIS’s intent to rescind; it is not itself a final rescission order. Lawful permanent resident status generally continues unless and until it is rescinded through the applicable process. Nevertheless, the notice should not be ignored, and the individual should speak with counsel before making international travel, employment, or other immigration-related decisions.

Why does visa availability matter at the time of approval?

An immigrant visa generally must be immediately available both when an adjustment application is filed and when USCIS finally approves it. The USCIS Policy Manual explains this requirement in Eligibility Requirements. Visa availability can change because of priority-date retrogression or because a category or country limit has been reached.

For example, the U.S. Department of State announced on May 22, 2026, that the employment-based second preference (EB2) per-country limit for India had been reached for fiscal year 2026. The July 2026 Visa Bulletin listed EB2 India as unavailable for the remainder of fiscal year 2026. The annual limits reset on October 1, 2026, at the beginning of fiscal year 2027. See India Per-Country Limit Reached in the EB-2 Category and the Visa Bulletin for July 2026.

Can USCIS rescind a green card even if the error was entirely the government’s fault?

Yes. Rescission focuses on whether the person was legally eligible for adjustment when USCIS granted it. The absence of fraud or wrongdoing by the applicant is highly relevant to the equities and the requested remedy, but it does not necessarily cure the statutory requirement that a visa number be available at final adjudication.

What should be investigated before responding?

The case record should be reconstructed carefully. Counsel may need to review the approval date, priority date, country of chargeability, preference category, monthly Visa Bulletin, any transfer-of-underlying-basis request, and all approved immigrant petitions. It also may be important to determine when the Department of State allocated or authorized the immigrant visa number, because that event may have occurred before the date reflected in later agency correspondence.

Can a Freedom of Information Act request help?

A Freedom of Information Act (FOIA) request may help obtain portions of the agency record, including documents concerning the immigrant visa request or allocation. A FOIA request, however, ordinarily does not extend the deadline to answer the NOIR. Depending on timing, it may be needed to respond with the available evidence, request additional time if appropriate, preserve the right to a hearing, and supplement the record if USCIS permits.

What if the person also had an approved EB3 petition or another immigrant category?

An alternate approved petition may be important. For example, if the person had an EB3 immigrant petition with a current priority date when USCIS approved the I-485, the record should be examined to determine whether the adjustment could properly have been granted under that basis. Evidence of a prior request to transfer the underlying basis may be especially significant.

USCIS generally permits a pending adjustment applicant to request consideration under another qualifying basis, subject to continuity and eligibility requirements. The agency discusses these rules in Transfer of Underlying Basis. Whether an alternate EB2 or EB3 basis can defeat rescission depends on the facts, including whether that basis properly supported the I-485 at the relevant time.

Can the response ask USCIS to return the I-485 to pending status instead of leaving the person without status?

Yes. In an appropriate case, counsel may ask USCIS to withdraw or terminate the rescission action and place the I-485 back into pending status until a visa number becomes available. The respondent also may request recognition of a valid alternate basis, if supported by the record. These are requested remedies, not automatic results, and the procedural path can vary depending on whether USCIS agrees with the response and whether the matter proceeds to an immigration judge.

What happens to employment authorization and advance parole if rescission becomes final?

Employment authorization and advance parole based on a pending I-485 generally depend on the continued existence of that pending application. A green card holder does not use an I-485-based employment authorization document (EAD) or advance parole document while permanent resident status remains valid. If permanent resident status is rescinded, the prior I-485 does not always return to pending status automatically. Therefore, it may be needed to request reinstatement or reopening of the I-485 and appropriate treatment of related EAD and advance parole benefits.

Until USCIS provides written confirmation, a person should not assume that a previously issued EAD or advance parole document has been restored or remains valid. International travel is particularly sensitive and should be discussed with a knowledgeable attorney before departure.

Should a hearing before an immigration judge be requested?

The regulations permit the respondent to request a hearing within the response period. Whether to request one is a strategic decision that depends on the allegations, available evidence, possible alternate immigrant classifications, and the relief being requested. Failing to preserve the hearing right can have major consequences, so this issue should be addressed before the deadline.

Can derivative family members also be affected?

Yes. If a spouse or child obtained permanent residence as a derivative of the principal applicant, rescission of the principal’s adjustment may create corresponding issues for the derivatives. Each family member’s notice, immigration history, and possible independent basis for status should be reviewed separately.

What should be done immediately after receiving a NOIR?

It is advisable to preserve the complete notice and envelope, confirm the date and method of service, calendar the response deadline, and gather the I-485 filing, approval notices, immigrant petition approvals, prior transfer requests, EAD and advance parole records, passports, and relevant Visa Bulletins. The respondent also should avoid making assumptions about travel or work authorization and should consult an experienced immigration attorney as soon as possible.

Conclusion

A NOIR based on visa unavailability can arise from an agency approval error rather than any misconduct by the applicant, but it still requires a prompt and carefully documented response. The defense may involve challenging USCIS’s visa-allocation premise, identifying an alternate EB2 or EB3 basis, preserving the right to a hearing, and asking USCIS to restore the I-485 and related interim benefits. Because the appropriate strategy depends on the exact approval date, visa-number history, underlying petitions, and procedural posture, individualized legal advice is essential.

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