GUIDELINES AND CHANGES FOR RETURNING DHS / USCIS

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RETURNING DHS / BCIS

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http://travel.state.gov/visa/laws/telegram...rams_1388.html#

R 251642Z FEB 04

FM SECSTATE WASHDC

TO ALL DIPLOMATIC AND CONSULAR POSTS

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 retur[/b]n. 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.

[chiquita 0]

i rest my case. if the info i just posted is NOT CLEAR enough then well, i want to be nice, but it just is clear!

this is great for those who have been denied to glean from for your rebuttal and also for those who were never given the chance to rebutt!!

chi

[Visa4habibi! 0]

Chi, would it affect cases denied before this was issued, do you know?

I've contacted Ombdusman, Senator and Congress Woman's offices and it's still in limbo. After October, I've contacted Ombdusman twice with no results up to today! I'll be back from Morocco after our SECOND wedding anniversary which is a little before Mother's Day. They sure weren't rushing before, would that get them moving now or would that affect just new cases? (Do you have any idea?)

Also, thanks for that post, Chi! You sure keep us updated! Where do you find the time?

Shukran,

T

[chiquita 0]

Chi, would it affect cases denied before this was issued, do you know?

I've contacted Ombdusman, Senator and Congress Woman's offices and it's still in limbo. After October, I've contacted Ombdusman twice with no results up to today! I'll be back from Morocco after our SECOND wedding anniversary which is a little before Mother's Day. They sure weren't rushing before, would that get them moving now or would that affect just new cases? (Do you have any idea?)

Also, thanks for that post, Chi! You sure keep us updated! Where do you find the time?

Shukran,

T

when were you denied? this info is an old postings back to 04.

the time...well back when we were denied, i spent every second doing reseach trying to find out what happened to us since the consulate lied to us. i found out a lot of info and used it in our case. it is my hope it can also help other couples.

chi

[Ban Hammer 13,355]

excellent post, chi

[Visa4habibi! 0]

"when were you denied? this info is an old postings back to 04.

the time...well back when we were denied, i spent every second doing reseach trying to find out what happened to us since the consulate lied to us. i found out a lot of info and used it in our case. it is my hope it can also help other couples.

chi"

Sorry, chi.

It's Tanya, firelion65, the same one from before and from dr2. (he was denied in Feb 2006)

[Ta Ta 1]

What does labor certification mean ?

[mybackpages 0]

What does labor certification mean ?

It is what is required for those applying for work based visas.

[Ta Ta 1]

thanks

[chiquita 0]

"when were you denied? this info is an old postings back to 04.

the time...well back when we were denied, i spent every second doing reseach trying to find out what happened to us since the consulate lied to us. i found out a lot of info and used it in our case. it is my hope it can also help other couples.

chi"

Sorry, chi.

It's Tanya, firelion65, the same one from before and from dr2. (he was denied in Feb 2006)

ops..

hi!

feel free to ask a way!

chi

[chiquita 0]

"when were you denied? this info is an old postings back to 04.

the time...well back when we were denied, i spent every second doing reseach trying to find out what happened to us since the consulate lied to us. i found out a lot of info and used it in our case. it is my hope it can also help other couples.

chi"

Sorry, chi.

It's Tanya, firelion65, the same one from before and from dr2. (he was denied in Feb 2006)

ops..

hi!

feel free to ask a way! you see how quick i react to someone is is denied? gotta get them help.

chi

chi