Category Archives: K-1 visa

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

When you are physically present in the U.S., your filing for Adjustment of Status (AOS) allows you to become a permanent resident without needing to apply for an immigrant visa at the U.S. Consulate abroad.

But if you are ineligible for AOS and mistakenly file a Form I-485​, Application to Register Permanent Residence or Adjust Status, your request will not only be denied, but you may also be placed in removal proceedings due to failure to maintain lawful nonimmigrant status and/or other grounds.

General Adjustment of Status (AOS) Eligibility Requirements

Foreign nationals may file for adjustment to permanent resident status if they meet the eligibility requirements at the time of submitting their ​Form I-485 application to USCIS.

Who is generally ELIGIBLE for AOS?

Immigrant categories that permit AOS include:

Immediate relative of a U.S. citizen [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]

​Other relative of a U.S. citizen or​ relative of a lawful​ permanent resident under ​a​ family-based preference category (See U.S. Department of State’s Visa Bulletin for a  list of family-based preference categories)

​Person admitted to the United States on a K-1 visa as a f​iancé(e) of a U.S. citizen and then marries the U.S. citizen. [A K-1 visa holder who enters a valid and bona fide marriage to the U.S. citizen petitioner within 90 days of arrival in the U.S. remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether he/she remarries thereafter.]

Widow(er) of a U.S. citizen

Violence Against Women Act (VAWA) self-petitioner

​Foreign national worker under an employment-based preference category (See U.S. Department of State’s Visa Bulletin for list of employment-based preference categories)

Foreign national entrepreneur (EB5 immigrant employment-based category)

Special immigrant (includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain U.S. armed forces members, certain physicians)

Certain victim of human trafficking  (T nonimmigrant)

Certain victim of crime (U nonimmigrant)

Person granted asylum status

Person granted refugee status

Person selected in the ​Diversity Visa lottery program ​

Beneficiary of INA 245(i) benefits

Who is generally NOT ELIGIBLE for AOS?

With limited exceptions, foreign nationals who are barred from applying for AOS include:

Foreign national ​who last entered the United States without being inspected and admitted​ or paroled by an immigration officer. [INA 245(i) and VAWA-based applicants are exempt from this bar.]

Foreign national who last entered the United States on a C-1/D-1 or D-2 visa as a nonimmigrant ​crewman. [VAWA-based applicants are exempt from this INA 245(c)(1) bar.]

Foreign national who is now employed or has ever been employed in the United States without authorization. [ Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from these INA 245(c)(2) and INA 245 (c)(8) bars.]

Foreign national who ​is not ​in​ lawful immigration status on the date of filing the Form I-485 application. [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(2) bar.]

Foreign national​ who ​has ever ​failed to continuously maintain ​a ​lawful status​ since entry into the United States​, unless the failure ​to maintain status ​was through no fault of his or her own or for technical​ ​reasons.  [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(2) bar.]

Foreign national ​who ​was last admitted to the United​ ​States​ ​in​ ​transit​ ​without​ ​a​ ​visa. [VAWA-based applicants are exempt from this INA 245(c)(3) bar.]

​Foreign national who was last ​admitted​ ​to​ ​Guam​ ​or the​ ​Commonwealth​ ​of the​ ​Northern​ ​Mariana​ ​Islands ​(CNMI) ​as a​ ​visitor​ ​under​ ​the Guam or CNMI​ ​V​isa​ ​Waiver Program​ and who is not a Canadian citizen. [Immediate relatives of a U.S. citizens are exempt from this bar.]

Foreign national ​who was last ​admitted ​to the United States as a nonimmigrant visitor without a visa under the ​Visa Waiver Program. [Immediate relatives of a U.S. citizens and VAWA-based applicants are exempt from this INA 245(c) bar.]

Foreign national ​who is​ deportable due to involvement in a terrorist activity or group. [​VAWA-based applicants are exempt from this INA 245(c)(6) bar, but may still be inadmissible for such activity.​]

​Foreign national who is seeking ​employment-based ​adjustment of status and ​who is not maintaining a lawful nonimmigrant status ​on the date of filing this ​application. [In some cases, the INA 245(k) exemption  excuses this INA 245(c)(7) bar.]

Foreign national who has ​ever ​violated​ ​the​ ​terms​ ​of the ​nonimmigrant status. [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(8) bar.]

Foreign national who is a ​conditional permanent resident​. [Conditional permanent residents​ must instead file a Form I-751 petition to remove conditions on their status to obtain permanent residence unconditionally.]

Foreign national who was admitted to the U.S. on a K-1 nonimmigrant ​fiancé(e) visa, but did not marry the U.S. citizen who filed​ ​the petition or foreign national who was admitted as the K-2 ​nonimmigrant​ child of a fiancé(e)​ ​whose parent did not marry the U.S. citizen who filed​ ​the petition.​ 

INA 245(a) Adjustment of Status (AOS) Eligibility Requirements

Most applicants file for Adjustment of Status based on ​INA 245(a), which does not include all the possible ways of adjusting status, such as AOS of Refugees or Asylees under INA 209(b)​.

​​The AOS eligibility requirements under section 245(a) include:

1.  You must normally have​ been​ inspected and admitted​ ​into the United States​; or inspected and paroled into the United States.

Unless you are an INA 245(i) applicant or a V​iolence ​A​gainst ​W​omen ​A​ct (VAWA)​ applicant​, you must meet the Inspected and Admitted or Paroled Requirement before you apply for AOS under section 245(a).

To lawfully enter the United States, you must first present yourself for inspection to an immigration officer at a ​U.S.​ ​port of entry.

Admission

For lawful admission to occur, the immigration officer must authorize you to enter the U.S. in accordance with the procedures for admission.​  If, however, the admission was based on a false claim to U.S. citizenship or to U.S. nationality at the ​port of entry​, the lawful admission requirement is not met.

The most common documents showing lawful admission are:

Arrival/​Departure ​Record (Form I-94)

​Admission stamp in passport​, which may be verified using Department of Homeland Security (DHS) systems

Employment Authorization Card (Form I-688A), for special ​agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application

Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the​ ​last ​claimed date of entry on the ​adjustment​ application​

Border Crossing Card (Form I-586 or Form DSP-150​), provided it was valid on the date of last claimed entry.​

Plane tickets evidencing travel to the United States, or other corroborating evidence, when an Arrival/Departure Record is not required in the following situations:

  • a ​Canadian ​citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly tr​ansit through the United States;​
  • a ​nonimmigrant residing in the British Virgin Islands who was admitted only to the U.S. Virgin Islands as a visitor for business or pleasure​;​
  • ​a Mexican ​n​ational admitted with ​a B-1/B-2 Visa and Border Crossing Card ​(Form DSP-150) ​at a land or sea ​port of entry​ as a visitor for business or pleasure ​for a period of 30 days to trave​l within 25 miles of the border;
  • a ​Mexican ​n​ational in possession of a ​Mexican diplomatic or official passport.

Waved through at port of entry

A wave through is when you present yourself for inspection, but the inspector waves you through the U.S.-Mexico or U.S-Canada land border, and allows you to enter the U.S. without asking any questions or checking your travel documents.  You must present a credible claim and submit supporting evidence, such as​ ​third party ​affidavits ​from those with personal knowledge about your wave through admission.

​Parole

In some situations, you may receive a grant of parole to enter the U.S. This is a temporary, discretionary act and is not an admission. Without determining whether you may be admitted to the U.S., the immigration officer may parole you in for deferred inspection or due to urgent humanitarian reasons or significant public benefits.

Parole in Place may also be issued to certain foreign nationals present without admission or parole, such as ​to a spouse, child, or parent of an ​a​ctive ​d​uty member of the U.S. ​a​rmed ​f​orces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. ​armed forces​ or the Selected Reserve of the Ready Reserve.

2. You must properly file an adjustment of status application.​

The Form I-485 must be filed with USCIS in accordance with ​the ​form ​instructions, when you are physically present in the United States. It must be signed, accompanied by the ​proper filing fee (unless a fee waiver is granted), submitted ​at the correct filing location​,  and filed when the priority date is current.

3. You must be eligible to receive an immigrant visa and an immigrant visa must be available when you file the adjustment of status application​ and at the time of final adjudication.​

Eligibility for an immigrant visa depends on the immigrant category in which you are filing for adjustment. Except for the Immediate Relative of a U.S. citizen category, the family-based and employment-based categories typically require a wait (sometimes for years or decades) before an immigrant visa becomes available.

4. You must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. 

You are ineligible for adjustment if you are subject to any inadmissibility grounds listed under INA 212, such as certain criminal offenses fraud or willful misrepresentation of material facts to gain immigration benefits and unlawful presence. A waiver must be available and you must qualify for the waiver if you are inadmissible to the U.S.

​5. You must merit the favorable exercise of discretion.​

The approval of a Form I-485 application under certain categories, including INA 245(a) Adjustment, is a discretionary decision.  This means you are not entitled to adjustment even when you are eligible for it.

Besides evaluating your eligibility, the immigration officer also considers other factors such as your immigration status and history;​ family unity;​ length of residence in the United States;​ business and employment; and​ community standing and moral character.​

Statutory Bars to Adjusting Status Under INA 245(a) 

Bars to adjusting status include unlawful immigration status at the time of filing a Form I-485 (INA 245(c)(2) bar); status and nonimmigrant visa violations (INA 245c)(2) and INA 245(c)(2)(8) bars); and failure to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration (INA 245(c)(7) bar). There are, however, exceptions and exemptions.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Why hire an immigration lawyer when immigration consultants and online immigration services offer lower rates?

The current political climate and 2016 election of Donald Trump for U.S. President have fueled fear among immigrant groups. Amidst the anti-immigrant rhetoric, it’s important to discuss your options in legalizing your status or securing the appropriate visa with an experienced immigration lawyer.

Why hire a lawyer when there is lower-cost help available through immigration consultants and online immigration services? The reasons are many, from ensuring you receive accurate advice to avoiding unnecessary delays.

The main advantages of hiring a reputable and trusted immigration lawyer, instead of depending on an immigration consultant or online immigration service are:

1. You receive guidance on which forms and documents to submit

A lawyer is not required to fill out application forms for immigration benefits. Anyone can complete the forms, which are, along with the instructions, available for free on U.S. Citizenship & Immigration Services and the U.S. Department of State’s websites.

But U.S. government agencies are not your advocates and do not consider your individual situation when providing resources and information to you. Only an immigration lawyer, who truly understands the eligibility requirements, can give you the most reliable advice on which forms and documents to submit to receive immigration benefits.

Legitimate immigration consultants and online immigration processors can certainly help you complete forms and submit the paperwork to USCIS and DOS at a much lower cost than what lawyers charge.

Nevertheless, your knowing which forms and documents to submit is not always clear by just reading instructions or doing your own research. Immigration consultants and online immigration services are prohibited from giving any legal advice concerning your immigration case, including which forms and documents to submit. Rather, you yourself have to make this determination before they then fill out the forms with your answers and prepare the documents you have given them for filing with the appropriate U.S. government agency.

Even qualified immigration consultants and highly-rated online immigration services are just document preparers. While they are distinguishable from shady Notarios who prey on vulnerable immigrant groups and engage in immigration scams, they provide limited service that does not always meet your immigration needs.

Questions on applications forms and questions from immigration or consular officers might seem simple, but often relate to legal issues that can result in denials and setbacks in your case. Immigration consultants and online immigration processors cannot counsel you on how to best answer a question or cross-check or verify your answers on the forms. All they can do is replicate and type out your responses to the questions asked on the forms.

When non-lawyer immigration consultants or online immigration processors advise you on which immigration benefit to apply for and how to prove you qualify for it, they essentially engage in unauthorized practice of law.

In contrast, immigration lawyers advise you on which exact forms and documents to submit for a particular immigration benefit. They will cross check your answers on application forms with your biographic and immigration records to help ensure accuracy and completeness. They will also counsel you on the implications of your answers to questions, as well as the effects of providing or not providing certain documents.

2. You get legal advice on how to best present your case

A good lawyer will counsel you on eligibility standards and evidentiary requirements, including those that are not spelled out in the instructions for forms or are otherwise readily known.

For instance, while an immigration consultant or online immigration service will accept your marriage certificate and divorce decrees for prior marriages as sufficient in an I-130 spousal immigrant petition, a lawyer will counsel you on additional documents to submit to prove your marriage is valid and bona fide.

A lawyer might be unnecessary in very simple cases, where the bare minimum is all that’s required to get the case approved. But in many cases, a high volume of documentary evidence, as well as credible testimony, are needed to achieve a favorable outcome.

One of the fastest growing online immigration processors, RapidVisa, states specifically that it does not give legal advice or representation, but offers a service similar to TurboTax for visa applications. At a low price, they provide online processing of K-1 fiancée visas, spousal visas, parent visas, green cards (adjustment of status), removal of conditions, citizenship (naturalization), joint sponsorship, and deferred action (Deferred Action for Childhood Arrival, under President Obama).

RapidVisa boasts an approval rate of 99.7% and 4-hour turnaround time. But it’s fair to say that these cases most likely had no complications to require the work of a lawyer, and could have been handled just as well by an applicant who was willing and able to deal with the paperwork alone.

Reputable immigration lawyers, who have the expertise to deal with the worst types of cases, are best equipped to help you present the strongest case possible. They can steer you away from pitfalls that lead to complications in your case, such as USCIS issuing a Request for Evidence or a Notice of Intent to Deny Petition. They are trained to spot issues and weaknesses that can tank your case. Unlike immigration consultants and online immigration processors, they do not merely rely on generic templates and checklists that do not account for unique situations.

3. You obtain verification on whether you actually qualify for the benefit sought

An immigration lawyer will gather facts and review your record to confirm whether you are eligible for the immigration benefit you seek. For example, under current law, you cannot apply for a marriage-based green card within the U.S. if you were not lawfully admitted to the U.S. with inspection, and you do not qualify for 245(i) benefits. If your immigrant petition is not in the immediate relative category, you may not file for adjustment to permanent residence unless you are maintaining lawful nonimmigrant status after entry as an F-1 student, H-1B worker, etc. or certain narrow exceptions apply.

Immigration consultants and online immigration processors are not equipped or authorized to verify your eligibility for a benefit sought. They cannot give advice as to which immigration status you should seek. These are legal issues that requires a lawyer’s guidance, especially when there are complications in your case.

Complications include marriage/divorce complications, visa overstays, unlawful presence, prior removal orders, illegal entries and re-entries to the U.S., immigration fraud or willful misrepresentation, false claims to U.S. citizenship, a criminal record, and being from a high-fraud country.

In June 2016, the State of Colorado passed a law that forced RapidVisa to relocate out of Colorado Springs, Colorado to Las Vegas, Nevada, where regulations related to the document-preparation industry are favorable. Known as Immigration Consultants Deceptive Trade Practice, the Colorado law targets deceptive “notarios”, which are small operations common in Hispanic communities, but it further forbids any person from offering any immigration service, regardless of whether it involves practicing law, unless that person is a lawyer.

In a press release, Ben Ives, President of RapidVisa, stated “this was simply a case of lawyers protecting their income.” He noted, “Petitioning for a family visa is a benefit request, not a legal issue. Do you hire a lawyer to apply for your driver’s license?”

Contrary to Mr. Ives’ claim, applying for an immigration benefit involves many legal issues that determine whether a person can live, study or work in the U.S., and even visit the country. Filing for an immigration benefit has a much more serious and broader impact than applying for a driver’s license.

A U.S. citizen’s decision to bring a fiancée, spouse,  or parent to the U.S. , for example, affects the fate of the family and their reunification.  An applicant’s mistake in filing for an immigration benefit, such as a green card or citizenship, for which he does not qualify can sometimes lead him into removal proceedings and get him deported from the United States.

4. You have comprehensive counseling from start to finish

In the initial evaluation of your case, and during the course of representation, an immigration lawyer can identify your priorities and pinpoint issues to help you achieve your objectives. They can lay out your various options and describe the pros and cons of pursuing each path.

An immigration lawyer can guide you on how to avoid complications or address them as they arise, such as responding to a Request for Evidence, a Notice of Intent to Deny, a Notice of Intent to Revoke, or a denial decision. He or she can intervene on your behalf to resolve problems.

An immigration lawyer can also prepare you for interviews before USCIS and the U.S. Consulates by describing what questions to expect and which issues are likely to arise, and how to best address them. They can appear with you at green card interviews and naturalization interviews to help protect your rights, present documentary information, and ask clarifying questions. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Lawyers must keep up with changes in the law, the risks (not just the benefits) of applying for immigration relief, and the nuances in the immigration process, and advise you accordingly.

A non-lawyer immigration consultant or online immigration processor cannot perform these vital services.

5. You get legal help from a licensed professional who is held to the highest ethical standards

When an immigration consultant or online immigration processor overlooks critical pieces of information or documents, which results in an avoidable denial or delay, there is generally no recourse. You typically have to rectify the harm through their channels or file a consumer complaint with the state attorney general.

Lawyers, on the other hand, are held to ethical standards set forth in their state rules of professional conduct. They can face disciplinary action, such as a suspension or disbarment, for failing to perform duties owed to clients. As a licensed professional, a lawyer has obligations and responsibilities that go above and beyond those of a non-lawyer immigration service.

Consult an immigration attorney at the very least 

Some states, such as California, Minnesota, and New York regulate the conduct of immigration consultants, instead of forbid them from performing any immigration service. While they may provide document preparation, they cannot offer legal advice in any situation.

Legitimate immigration consultants and online immigration processors can ease the stress that comes with handling the immigration paperwork yourself. But realize they do nothing more than document preparation. A complete reliance on non-lawyer immigration services gives you a false sense of security and could open you up to making mistakes and bungling your immigration matter.

Reliable legal representation may be more affordable than you assume. There are solo practitioners and small firm lawyers who charge reasonable fees for high-quality, comprehensive service. There are also non-profit legal service providers and pro-bono attorneys who will accept your case for sliding scale or reduced fees or no fees.

Almost everyone can gather funds to consult an experienced immigration lawyer at least once, or retain unbundled legal service to address the complicated parts of the case. Before you file for an immigration benefit, talk to a reputable immigration lawyer about the eligibility standards, documentary requirements and filing process. Relying on immigration consultants and online immigration processors can save you money upfront, but cost you a lot more in the long run.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What Triggers a Notice of Intent to Revoke an I-130 or I-129F Petition and What Can You Do About It?

popped balloonWhen USCIS finds that it approved an I-130 (immigrant visa) or I-129F (K-1 visa) petition in error, it will issue a Notice of Intent to Revoke (NOIR) to the petitioner. A NOIR is a letter to the petitioner fully explaining why USCIS intends to revoke a previously approved petition. Typically, the petitioner has 30 days to respond to the allegations and present additional information or evidence before USCIS decides whether to revoke or reaffirm the petition approval.

What Factors Usually Trigger a Notice of Intent to Revoke? 

In marriage-based green card cases, the two most common factors that trigger a revocation notice are:

USCIS Discovers Prior Marriage Fraud Determination

A common reason for a NOIR is when USCIS overlooked a prior marriage fraud determination that prevents the approval of a subsequent petition for the same beneficiary.

Section 204(c) of the Immigration & Nationality Act states that no visa petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, by reason of a marriage determined by USCIS to have been entered into for evading immigration laws (i.e. a sham marriage for immigration benefits).

It is not enough for the Consulate to have denied a prior immigrant visa or K-1 visa based on suspicion of a sham relationship. Rather, for section 204(c) to apply, USCIS must make an independent conclusion that the prior marriage was fraudulent.

If USCIS later discovers it should have denied the petition under section 204(c), due to an official determination of prior marriage fraud, it may issue a NOIR.

U.S Consulate Finds Lack of Evidence Showing Bona Fide Marriage

Although the U.S. Consulate has no authority to revoke a petition, it has the final say in whether to grant you an immigrant visa or K-1 visa to enter the United States. The doctrine of consular nonreviewability severely limits judicial or administrative review of a consular officer’s visa denial.

Furthermore, a consular officer who has doubts about the bona fide nature of the relationship between the petitioner and visa applicant, or observes material discrepancies in the record, may return the petition to USCIS for possible revocation.

At the immigrant visa or K-1 visa interview, the consular officer may question the visa applicant and conduct its own investigation. It may also require additional documentary evidence of the relationship, even though USCIS has already approved the petition.

If you do not communicate well, submit insufficient documents, or provide answers that cause the Consulate to doubt the bona fide nature of your relationship to the petitioner, this could lead to a NOIR citing lack of evidence to keep the petition approval. If you raise issues that conflict with the existing record, this could lead to a NOIR citing fraud or willful misrepresentation to gain immigration benefits.

Because the Consulate has no authority to re-adjudicate the petition, it must support the return of the petition with factual and concrete reasons that USCIS did not fully consider.

The Consulate should seek revocation only if 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 visa applicant is not entitled to the benefits sought in the petition.  Generally, Consulates are instructed to not return the petition unless it discovers new information or evidence not known to USCIS at the time of approval.

What Can You Do to Avoid or Overcome a Notice of Intent to Revoke? 

In marriage-based green card cases, the documentary evidence and testimony you present is essential to getting and keeping a petition approval. You cannot obtain an immigrant visa, a K-1 visa, or adjustment to permanent resident status without an underlying petition approval.

Avoiding a Notice of Intent to Revoke starts with filing a strong petition with USCIS and preparing thoroughly for the visa interview at the U.S. Consulate. Overcoming a Notice of Intent to Revoke lies in submitting a timely and convincing response to USCIS.

The key stages to exercise caution and seek sound advice from an experienced immigration attorney are:

Filing the Petition

USCIS approves an I-130 for a spouse and an I-129F for a fiancé(e) only when it is convinced the couple more likely than not shares a bona fide relationship, i.e. a marriage or engagement based on mutual intent to establish a life together, and not just for immigration benefits.

In support of the petition, the couple may present documentary evidence such as email correspondences, telephone records, stamped passport pages, travel itineraries, hotel receipts, photos of the two of them together, and affidavits from relatives and friends demonstrating they have a bona fide relationship.

When reviewing a stand-alone I-130 or I-129F petition, USCIS does not interview the petitioner or beneficiary, or conduct independent investigation, but generally relies on the documentary evidence submitted with the petition.

USCIS will issue a Request for Evidence (RFE) if initial evidence is missing. USCIS will issue a Notice of Intent to Deny (NOID) if initial evidence is mostly present, but: (a) the filing does not appear to establish eligibility by the preponderance of the evidence; (b) the case appears to be ineligible for approval but not necessarily incurable; or (c) the adjudicator intends to rely for denial on evidence not submitted by the petitioner.

Even when USCIS approves the petition, it may later issue a Notice of Intent to Revoke at any time before the immigrant visa or adjustment of status is granted. If the petition did not contain much evidence of a bona fide relationship or eligibility for the benefit sought, it’s a lot easier for USCIS to revoke the petition approval.

Obtaining guidance from an attorney on the appropriate forms and supporting evidence to submit is essential to getting a petition approval and avoiding a NOIR.

Attending the Visa Interview

In many cases, revocation proceedings are initiated by consular officers who suspect the couple do not share a real relationship. Consular officers often rely on their opinions about the nature of a genuine relationship, in light of cultural norms, local customs, and other factors.  In turn, USCIS may depend on the findings of a consular officer who has interviewed the visa applicant, verified documentary evidence, and performed investigation abroad.

Do not take the petition approval for granted or treat the visa interview as just a formality. The doctrine of consular nonreviewability severely limits administrative or judicial review of consular decisions. The visa applicant (beneficiary of the petition) must prepare fully for the visa interview, respond consistently, truthfully and appropriately to questions, and provide any requested or missing documents.

Having counsel prepare you for the visa interview, including questions and concerns that are likely to be raised by the consular officer, is critical.

Responding to a NOIR

Even couples who share a bona fide relationship can end up with a Notice of Intent to Revoke. If USCIS issues a NOIR, it means it found good and sufficient cause to revoke the petition approval. When responding to a NOIR, it’s important to rebut each and every issue raised, including allegations against the bona fide nature of the relationship.

USCIS must provide derogatory information unknown to the petitioner or applicant in the NOIR. The petitioner typically has 30 days to respond to the allegations and present additional information or evidence before USCIS makes a decision.

Due to the time constraints, multiple issues raised in the NOIR, and the petitioner’s lack of experience with complicated immigration matters, it’s important to get counsel’s help. An experienced attorney can advise you on the rebuttal documents and information to submit, prepare a persuasive legal brief, and submit the best possible response within 30 days.

Challenging a Revocation Notice

If USCIS agrees to sustain the petition approval – following review of the response to the NOIR –  it will issue a reaffirmation notice to the petitioner. After receiving the reaffirmation notice, the Consulate may accept the petition as valid, schedule a second interview, and issue the immigrant visa or K-1 visa.

If, however, USCIS decides the petition should not have been approved, it will issue a revocation notice to the petitioner. The petitioner may appeal an I-130 or I-129F revocation to the higher agency, or file a motion to reopen or reconsider with USCIS, within 15 days. If the petitioner does not challenge the revocation, the decision becomes final and the petition may no longer be used to continue the immigration process.

When the couple is already married, the petitioner may file a new I-130 petition, but must include evidence to rebut any claims that led to the NOIR or revocation notice in a prior petition. When the couple is engaged, filing a new K-1 fiancé(e) petition is not a cure-all solution because USCIS and the Consulate will be aware of problems in the prior petition. Getting married and filing an I-130 petition is a more effective, but not foolproof, course of action.

A petitioner who files a new I-130 or I-129F petition still has to overcome issues listed in a Notice of Intent to Revoke a prior petition approval, or address concerns raised by the U.S. Consulate.

If you receive a revocation notice, consult an immigration attorney to determine whether to file an appeal, a motion to reopen or reconsider, and/or a new petition, and help you pursue your options.

To learn more about the revocation process, read our other article, Notice of Intent to Revoke I-130 or I-129F Petition: Big Stumbling Block to Overcome in Marriage-Based Green Card Case.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Notice of Intent to Revoke I-130 or I-129F Petition: Big Stumbling Block to Overcome in Marriage-Based Green Card Case

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In marriage-based green card cases, USCIS’ approval of an I-130 petition does not entitle you to an immigrant visa or adjustment to permanent residence. Likewise, mere approval of an I-129F petition does not necessarily mean you will get the K-1 fiancé(e) visa. Until you are admitted to the U.S. as an immigrant or you adjust status, USCIS may revoke the approval of the petition at any time, for good and sufficient cause.

Some petitions may be automatically revoked, such as when the petitioner withdraws the petition, divorces the beneficiary, or dies and section 204(l) survivor benefits do not apply. Other petitions may be revoked on notice when USCIS determines it issued the approval in error. A Notice of Intent to Revoke (NOIR) is a big stumbling block to overcome when seeking to immigrate to the United States.

Why is the Notice of Intent to Revoke a Big Stumbling Block?  

An approved I-130 petition by a U.S. citizen or permanent resident spouse allows you to apply for an immigrant visa at the U.S. Consulate or file for adjustment of status within the U.S. (if eligible). An approved I-129F petition permits you to apply for a K-1 visa to come to the U.S., marry the U.S. citizen petitioner within 90 days of arrival, and then file for a green card. Getting the petition approved is just a preliminary step.

USCIS may seek to reverse its decision and revoke the approval based on information or evidence that it did not previously consider. The information or evidence need not have been unavailable or undiscoverable at the time the petition was approved. A NOIR may be based on plain USCIS error, such as overlooking a prior marriage fraud determination or lacking information or evidence discovered by the U.S. Consulate.

Receiving a Notice of Intent to Revoke is disheartening, especially when you have already completed the visa application process and attended your visa interview. Even if the NOIR is based on misinterpretations of the facts, false allegations, or erroneous conclusions, a full and timely response is still required to keep the approval of the petition and continue with the green card process.

How Does the Revocation Process Work?

Once you are permanent resident, revocation of the petition approval is no longer possible. Instead, the U.S. government must use rescission or removal (deportation) proceedings to take your green card away.

The revocation process may begin at any time after the petition is approved, but before you adjust to permanent residence or before you are admitted to the U.S. on an immigrant visa.

When USCIS, on its own initiative,  determines it approved an I-130 or I-129F in error, it retrieves the petition from the USCIS office, consular office, or National Visa Center (NVC) for possible revocation.

In other cases, the U.S. Consulate initiates revocation by sending the case back to USCIS for further review, due to negative information it obtained during review of the visa application or during its interview of the visa applicant.  The consular officer typically denies the visa application under INA section 221(g) (temporary refusal of immigrant visa), pending USCIS’ review of the returned petition. The Consulate returns the petition to USCIS with a  memorandum explaining why it believes the petition should not have been approved or is no longer approvable.

Consulates return immigrant petitions to the National Visa Center, which then route them to the appropriate USCIS offices.

Case Status Information

When a petition is returned and relocated to USCIS, the status of the petition is logged into the national USCIS database system, which in turn updates the Case Status Online system on USCIS’ website.

Not all the USCIS service centers issue receipt notices to petitioners, informing them that the petition is now at a particular USCIS office. For many months (sometimes six months to over 12 months), petitioners often cannot obtain specific case status information through the National Customer Service Center (NCSC) or Case Status Online, until USCIS issues a decision reaffirming the approval or a Notice of Intent to Revoke.

Notice Reaffirming Approval or Notice of Intent to Revoke

Upon receipt of the returned petition, USCIS prepares the case for additional review and forwards it to the adjudications officer who will evaluate the reasons provided by the Consulate for the return.

If USCIS finds the petition is not revocable for the reasons stated by the Consulate, it will reaffirm the petition and return it to the Consulate with an explanation of its decision not to revoke the petition.

If USCIS agrees with the Consulate’s reasoning, it will issue a Notice of Intent to Revoke to the petitioner. A NOIR must be based on “good and sufficient cause.” This means there is evidence in the record, if unexplained and unrebutted, would support a denial of the petition.

A NOIR is a letter to the petitioner fully explaining why USCIS intends to revoke a previously approved petition. USCIS must provide derogatory information unknown to the petitioner or applicant in the NOIR. The petitioner has an opportunity to rebut the allegations and present additional information or evidence before USCIS makes a decision.

USCIS gives the petitioner a specific time frame (usually 30 days) to respond. Petitioners may request additional time if they need it for legitimate reasons, like obtaining documentation from abroad.

If the petitioner does not provide a full and timely explanation on why the petition should not be revoked, and support it with additional evidence, USCIS will revoke the petition. When the approval of a petition is revoked, you may no longer use it to immigrate to the United States.

K-1 visa petitions are especially problematic because they expire after four months from the date of approval by USCIS (or date of last action by U.S. Consulate).  An expired petition may be revalidated by USCIS or the U.S. Consulate in four-month increments upon finding that the K-1 beneficiary is free to marry and intends to marry the petitioner within 90 days of arrival in the United States. The decision on whether to revalidate the petition is discretionary.

What are the Steps for USCIS to Decide on a Notice of Intent to Revoke? 

USCIS will review the petitioner’s response to a NOIR before it decides whether to revoke the petition.

Reaffirmation Notice

If USCIS agrees to sustain the petition approval – following review of the response to the NOIR – it will issue a reaffirmation notice to the petitioner. It will also return the petition to the National Visa Center for transfer to the Consulate with the reaffirmation notice, a copy of the NOIR, and the petitioner’s response.

The Consulate may accept the petition as valid, schedule a second interview, and issue the immigrant visa or K-1 visa. In rare cases, however, the Consulate may return the petition again to USCIS with new evidence that was not previously considered. In that event, the revocation process begins again.

Revocation Notice

If the petitioner does not provide a satisfactory response or fails to timely respond to the NOIR, USCIS will issue a revocation notice to the petitioner.

The petitioner may appeal an I-130 or I-129F revocation to the higher agency, or file a motion to reopen or reconsider with USCIS, within 15 days. If the petitioner does not challenge the revocation, the decision becomes final and the petition may no longer be used to continue the immigration process.

Consult an Experienced Immigration Attorney from Start to Finish

An experienced immigration attorney can help you get an I-130 or I-129F approval by advising you on the appropriate forms and supporting documents to submit. Before you attend the visa interview, it’s best to have the attorney prepare you for likely questions and requests for documents, as well as potential actions by a consular officer.

If a NOIR is issued, you typically need counsel’s guidance in filing a timely, complete and satisfactory response to obtain a reaffirmation notice. If USCIS revokes the petition approval, consult an immigration attorney to determine whether to file an appeal, a motion to reopen or reconsider, and/or a new petition, and help you pursue your options.

To learn more about the revocation process, read our other article, What Triggers a Notice of Intent to Revoke an I-130 or I-129F Petition and What Can You Do About It?

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Joe Murphy

 

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This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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