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.
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.
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