RETURNING DHS / BCIS
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 / USCIS
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 (USCIS) 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 USCIS 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 USCIS with recommendations for revocation
have been lost. In other cases, post has not received any
information from USCIS on the status of the revocation request.
The NVC will track all cases returned to USCIS and ensure that
the cases are sent to and received from USCIS 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 USCIS
Service Center. Cases will be returned from the USCIS Service
Center to the NVC and then routed back to the post of origin.
The NVC will follow up on cases lacking information from USCIS 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 USCIS 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/USCIS 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.
