Has anyone seen this?

[Verde is Scrabble 0]

http://www.ilw.com/articles/2006,0323-ellis.shtm

[Verde is Scrabble 0]

http://www.ilw.com/articles/2006,0323-ellis.shtm

Denials Of Family-Based Immigrant Visas At Consulates And DHS Petition Revocations

by Marc Ellis

This article focuses on the return of approved family-based IV petitions by consulates and how to represent clients in DHS revocation proceedings.

After a family-based immigrant visa petition has been approved by USCIS, some clients might think that the process is nearly complete. They often have a rude awakening when their loved ones interview for visas at a US Consulate. This article will suggest some ways to avoid having the petition returned by the consulate. It will also point out a misrepresentation trap for the unwary that exists in the Foreign Affairs Manual (FAM).

First, to illustrate my points, here is a hypothetical fact situation.

Example: Petitioner sponsors a K-1 beneficiary. K-1 petition is approved by a USCIS Service Center in the US. The Service Center forwards the case to the National Visa Center. The case is assigned a case number and sent to the appropriate consulate by the NVC. The beneficiary interviews at a US Consulate and her case is not approved at the time of the interview. Rather, the interviewing officer first refuses the visa application under INA 221(g), and requests more information about the relationship.

After the petitioner and beneficiary provide the information, the consular officer decides that the petition should be returned to USCIS for review with the recommendation that it be revoked because it’s the officer’s view that a reasonable person would believe the relationship exists solely or primarily to convey an immigration benefit. The case then is sent from the interviewing officer to a supervisor at the consulate who reviews the officer’s recommendation. This process can sometimes take months or years. The process is sometimes called “AR” or administrative review

These are the facts we’re using for the article. Now here is the law.

I. The Burden a Consular Officer Must Meet to Recommend Revocation of an Approved Family Petition

There is a heavy burden a consular officer must meet before he or she can recommend an DHS-approved petition be revoked. In employment-based IV cases, a consular officer has the authority to invalidate labor certifications, if so instructed by the Department of State after obtaining an advisory opinion from the Bureau of Consular Affairs.

In family cases though, the power of consulates is more limited. DHS has the sole statutory authority to approve or revoke a family-based immigrant visa petition. And a DHS approval is a prima facie presentation of eligibility under the Act.

A good restatement of the standards governing petition returns by consulate is found in a February 2004 cable R 251642Z FEB 04, excerpted below, sent to all consulates.

… “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. …”

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility. More importantly, this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

PRACTICE TIP #1 - What the words generally unavailable to DHS at the time of petition approval should mean to skilled immigration practitioners, is that they should inform DHS in advance, at the time of filing the petition, of any potential red flags a consular officer might spot in the case. If DHS approves the petition anyway, a consulate is not supposed to deny a petition for that same reason.

What are some typical red flags that can cause a Consular Officer to suspect the merits of a relationship?

On the petitioner’s side, here is a brief and, by no means, complete list of reasons I have seen used to justify the return of family-based IV petitions and K petitions to DHS.

1. A very brief courtship followed by a plunge into matrimony;

2. A marriage ceremony arranged only a short time after petitioner arrives in the beneficiary’s country and they meet for the first time;

3. No common language;

4. Petitioner resides with family members of the beneficiary in the US;

5. Petitioner is employed by or has a business relationship with a relative of beneficiary;

6. Petitioner submits phone records that show he uses a residential phone number that is listed in the name of another person.

7. US divorce followed very quickly by an engagement to foreign beneficiary is often a red flag for consular officers.

8. There is little or no documentary evidence of the relationship prior to the actual engagement.

9. Long gaps of time between the petitioner & beneficiary being together in person.

10. Failure to disclose previous marriages;

11. Failure to disclose previous petitions filed on behalf of other beneficiaries.

I’ve only addressed the petitioner’s side of the relationship. There are other red flags that can afflict the beneficiary. But the point to remember is that consulates are not supposed to deny family-IV applications for reasons that were generally available to DHS at the time of approval, so tell DHS in advance of any potential red flags when you file the petition. That doesn’t guarantee consular officers won’t find other reasons unknown to DHS, but at least you will have served your client well by disarming the obvious landmines in his or her path. And you will make the consular officers work by forcing them to examine each and every fact asserted in the petition to see if DHS had knowledge of the information used to justify the recommendation for revocation.

[Scott and Mhay 57]

Good to know. I hope i addressed it enough with my short time between divorce and marrying my wife now. It does take quite a bit of time to get the divorce sometimes. I did write an evolution of relationship letter and sent it with my package. That is the only concern I have in our case. I have known my current wife that I am petitioning for almost 2 years...so that might help. I would like to be at the interview if I can, but of course i dont know how fast our case will go. I did apply for expedited processing, but with the holidays and everything I dont think it will really matter. I am assuming our case is just getting looked at since as of the 24th Nov it wasnt even at CSC. Reguardless how it goes, i am going to visit and spend more time with my wife after my tour in kuwait. We are very much in love and we will have no problems proving a relationship since we talk everyday on skype and gmail messenger while I am at work.

All I we can do is pray for the best. My wife just is hoping we can be together by our wedding anniversary....29 Aug 2010.

[Lancelotte25 1]

The only red flag I could see with our case is that we were introduced to each other by my aunt who happened to be my wife's co-worker. I just keep on thinking about it. My auntie just introduced us to each other way back in 2003 and we started sending letters and calling each other, I just hope it will not cause us a red flag.

[sara..... 371]

this is great information......to bad the embassy's just kind of do as they want.....

sara

[Verde is Scrabble 0]

this is great information......to bad the embassy's just kind of do as they want.....

sara

Yeah, I know ... that's the sad part. If I understand this correctly, they are not supposed to be "ajudicating" or "re-ajudicating" anything at all - and any action they take (such as AR, AP, or denial) must be based on substantial evidence that is new (not known to the USCIS or NVC before the case reaches the embassy).

Wow.

"… “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. …”

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility. More importantly, this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

Edited December 4, 2009 by scrabble

[Dakine 26]

this is great information......to bad the embassy's just kind of do as they want.....

sara

True as even if you "front load" and inform them of red flags that could disquaify you the COs still can use "Lack of evidence of a bonafide relationship" as a catchall if they "think" the relationship isn't for real.

Mark Ellis seems to know what he's talking about and people here have used him with success.

Don't know about the failures tho.

Somethings just can't be "fixed" by anyone.

[Verde is Scrabble 0]

this is great information......to bad the embassy's just kind of do as they want.....

sara

True as even if you "front load" and inform them of red flags that could disquaify you the COs still can use "Lack of evidence of a bonafide relationship" as a catchall if they "think" the relationship isn't for real.

Mark Ellis seems to know what he's talking about and people here have used him with success.

Don't know about the failures tho.

Somethings just can't be "fixed" by anyone.

Yeah, that "bona fide" relationship stuff is a black hole of subjectivity. Who can really prove or disprove that your relationship/marriage is real? I mean, you have a marriage certificate and everything a normal married couple would have. Everything else is subjective, unless there is tangible evidence of fraud or a "green card" marriage, such as written proof, an admission, or transfer of money or property. Outside of that, what to do? They can't prove it, you can't disprove it, and vice versa. It all boils down to the subjective opinion of a Consular Officer, and I am unsure what their actual qualifications are. I doubt that they are attorneys or judges ... I suspect they were clerks who just moved up the ranks at the Embassy. It might be better if they were attorneys and/or psychologists or someone with qualifications to make these "opinions" which alter people's lives (and loves).

[Verde is Scrabble 0]

this is great information......to bad the embassy's just kind of do as they want.....

sara

True as even if you "front load" and inform them of red flags that could disquaify you the COs still can use "Lack of evidence of a bonafide relationship" as a catchall if they "think" the relationship isn't for real.

Mark Ellis seems to know what he's talking about and people here have used him with success.

Don't know about the failures tho.

Somethings just can't be "fixed" by anyone.

Yeah, that "bona fide" relationship stuff is a black hole of subjectivity. Who can really prove or disprove that your relationship/marriage is real? I mean, you have a marriage certificate and everything a normal married couple would have. Everything else is subjective, unless there is tangible evidence of fraud or a "green card" marriage, such as written proof, an admission, or transfer of money or property. Outside of that, what to do? They can't prove it, you can't disprove it, and vice versa. It all boils down to the subjective opinion of a Consular Officer, and I am unsure what their actual qualifications are. I doubt that they are attorneys or judges ... I suspect they were clerks who just moved up the ranks at the Embassy. It might be better if they were attorneys and/or psychologists or someone with qualifications to make these "opinions" which alter people's lives (and loves).

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 / 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.

[sara..... 371]

this is great information......to bad the embassy's just kind of do as they want.....

sara

True as even if you "front load" and inform them of red flags that could disquaify you the COs still can use "Lack of evidence of a bonafide relationship" as a catchall if they "think" the relationship isn't for real.

Mark Ellis seems to know what he's talking about and people here have used him with success.

Don't know about the failures tho.

Somethings just can't be "fixed" by anyone.

Yeah, that "bona fide" relationship stuff is a black hole of subjectivity. Who can really prove or disprove that your relationship/marriage is real? I mean, you have a marriage certificate and everything a normal married couple would have. Everything else is subjective, unless there is tangible evidence of fraud or a "green card" marriage, such as written proof, an admission, or transfer of money or property. Outside of that, what to do? They can't prove it, you can't disprove it, and vice versa. It all boils down to the subjective opinion of a Consular Officer, and I am unsure what their actual qualifications are. I doubt that they are attorneys or judges ... I suspect they were clerks who just moved up the ranks at the Embassy. It might be better if they were attorneys and/or psychologists or someone with qualifications to make these "opinions" which alter people's lives (and loves).

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 / 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.

and what was the date all of this came into play?

sara

[Verde is Scrabble 0]

This memo was sent from DHS/DOS to all embassies/consulates in 2004, but our embassy denied that this is the case. I would like to review actual code/law to see if it has been amended to reflect this. Anyone else have experience/ideas on this? This came straight off the Department of State's website.