Department of State Advises on New Procedures for Petitions Returned for Revocation

February 25, 2004

R 251642Z FEB 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KHARTOUM
AMEMBASSY KABUL
AMEMBASSY BUJUMBURA
UNCLAS STATE 041682

VISAS - INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS
 

SUBJECT: SOP 61: GUIDELINES AND CHANGES FOR RETURNING DHS / BCIS APPROVED IV AND NIV PETITIONS

1. Summary. Effective immediately, all immigrant, K-1 and K-3 visa petitions being returned with a recommendation to the DHS Bureau of Citizenship and Immigration Services (BCIS) for revocation will be forwarded to the National Visa Center (NVC). This cable provides guidance to posts on proper processing of DHS petitions submitted in support of immigrant or nonimmigrant visa applications. It cites and provides supplemental material to already existing FAM procedural instructions. End Summary

2. Effective immediately, posts should forward all immigrant and K-1/K-3 visa petitions being returned to the BCIS with a recommendation for revocation to the NVC. The NVC has developed a system for tracking all immigrant and K-1/K-3 visa petition cases returned from posts with recommendations for revocation. There are two reasons for the change in procedure. First, many petitions returned to BCIS with recommendations for revocation have been lost. In other cases, post has not received any information from BCIS on the status of the revocation request. The NVC will track all cases returned to BCIS and ensure that the cases are sent to and received from BCIS in a timely manner. Second, the NVC Fraud Prevention Unit intends to utilize the data obtained from revocations to track trends for future intelligence dissemination.

3. Revocation cases will be forwarded to the NVC for review and data collection, and forwarded by NVC to the appropriate BCIS Service Center. Cases will be returned from the BCIS Service Center to the NVC and then routed back to the post of origin. The NVC will follow up on cases lacking information from BCIS in a designated timeframe. Please note that conforming changes will be made in the relevant section of 9 FAM 42.43, N2, "When to Return Petitions," N3 "Returning Petitions" and PN1 "Returning Petitions for Possible Revocation" and 9 FAM 41.81 N6.6 "Additional Factors That May Raise Questions in K-1 Cases." Nonimmigrant visa petitions other than K-1/K-3 petitions returned with a recommendation for revocation will continue to be sent to the appropriate BCIS Service Center.

4. All Immigrant and K-1/K-3 Visa Revocation cases are to be returned to the following address:
National Visa Center
32 Rochester Ave.
Portsmouth NH 03801
Attn: Fraud Prevention Manager

5. Unlike consular determinations regarding visa eligibility, which are not subject to judicial review, actions relating to DHS petitions are potentially subject to administrative and/or judicial review. The Department is regularly named as a co- defendant with DHS in cases involving the return of immigrant or nonimmigrant petitions to DHS. Therefore, it is particularly important that consular petition adjudications are well documented and clearly state the basis for the petition return.

6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

No readjudication of petitions

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition.

8. When a petition is returned to DHS, if DHS concurs with the officer's recommendation, DHS regulations require DHS/BCIS to provide the petitioner notice of intent to revoke, and to allow the petitioner an opportunity to rebut the grounds for revocation. DHS regulations require that, in the case of nonimmigrant petitions, the revocation must be based only on grounds specified in the regulations. Those grounds include evidence that the statement of facts in the petition was not true and correct, or that the approval involved gross error. The FAM often only summarizes the petition approval criteria because they are too lengthy and complicated to reproduce fully (the H regulations, for example, contain about 25 pages of double column material). Absent access to the full DHS regulations, conoffs may not be aware of all of the factors considered by DHS in approving a petition. In addition, conoffs are normally less knowledgeable about the basis for petition eligibility than DHS personnel; they therefore should not jump to conclusions regarding petitions. In addition, conoffs should return petitions only where there is specific, material and clear evidence to provide the DHS a basis to initiate petition revocation procedures.

Sufficiency of evidence

9. 9 FAM '42.43, Procedural Note One states that when returning petitions for possible revocation, "The original petition, along with all supporting documents, shall be returned under cover of a Form DS-3096, Consular Return/Case Transfer Cover Sheet, and a memorandum supporting the recommendation for revocation. The report must be comprehensive, clearly showing factual and concrete reasons for revocation. The report must be well reasoned and analytical rather than conclusory. Observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant." The criteria cited in this note derive from the Board of Immigration Appeals case, Matter of Arias, in which the Board determined that the memorandum supporting a petition return did not constitute "good and sufficient cause" for petition revocation, because it consisted of "observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship".

10. Memoranda supporting petition returns should be scrutinized carefully and objectively, bearing in mind that they may become relevant in litigation. The memoranda should be based on specific factual evidence, rather than conclusions, and should be clearly reasoned. For example, a statement that unnamed neighbors told a fraud investigator that a couple was not married is likely to be viewed as of relatively little value compared to a statement that names the neighbors, explains the nature of their relationship to and knowledge of the couple, and sets out the specific facts that led to the conclusion that the couple was not married. Signed statements are of greater value than second hand reports. Where a statement is prepared in English by a non-native English speaker, it should be proofread carefully. Posts can consult with CA/VO/L/A on cases where there are questions or concerns over the sufficiency of evidence cited in the memo supporting a petition return.

Notice to Applicant

11. INA 212(b) requires the conoff in most cases to "provide the alien with a timely written notice that- (A) states the determination, and (B) lists the specific provision or provisions of law under which the alien is inadmissible." 9 FAM 42.81 Procedural Note one instructs the conoff to provide: "1) The provision(s) of law on which the refusal is based; (2) The factual basis for the refusal (unless such information is classified); (3) Any missing documents or other evidence required; (4) What procedural steps must be taken by the consular officer or Department; and (5) Any relief available to overcome the refusal."

12. There are legitimate reasons why in some cases a conoff should not release all information relating to a visa refusal; such reasons could include classification of the information, confidentiality concerns, the need to protect an informant, or the "third agency rule" (information from another agency should only be released with that agency's permission). However, absent such considerations, conoffs should provide the applicant with the full factual basis for a visa refusal, as well as a reasonable opportunity to overcome the finding. This is particularly important to ensure that the Department's interests are protected in any subsequent litigation. It is important that conoffs maintain a record at Post showing that Post provided a written notice of the legal ground for refusal to the applicant, and, if possible, the factual basis for the refusal (this will normally consist of a copy of the OF-194). Conoffs are also reminded that in accordance with 9 FAM 42.81 Procedural Note 9, and 41.53 Note 2.3, copies of returned petitions and all other relevant material must be retained at Post.

Additional Considerations

13. Post's requests for petition revocation are often based upon investigation results. Consular managers should ensure that their fraud prevention programs actively tie investigations to legally-pertinent factual questions, and that they are likely to produce concrete evidence. In other words, if an investigation that confirms conoff's suspicions will not serve to allow DHS to revoke the petition, post is not managing its investigations effectively. Posts can find useful guidance on managing investigations and other aspects of fraud prevention at CA/FPP's intranet site at http://intranet.ca.state.gov/fpp/fpphome.htm. In accordance with the guidance in 9 FAM 40.63 Note 10.1, where there is evidence that the petition was approved based on fraud, the fraud cannot be considered to be material until the petition is revoked, and therefore while post can enter such cases into CLASS as P6CI, post should not pursue a 6C finding until the petition is revoked or abandoned. As stated in 9 FAM 40.4 note 10.1, post should be aware that any evidence presented to DHS in support of a petition revocation may be passed to the petitioner as part of the petition revocation procedures. Finally, Posts should review 9 FAM 40.51 Note 10 on the handling of petitions where there is evidence that a labor certification was obtained by fraud or material misrepresentation.