Returning petitions to USCIS for revocation

In some cases, a person may go to the US Embassy for a visa interview, based on an approved petition (whether it is a non-immigrant petition, such as H-1B, an employment-based case, such as for labor certification, or a family-based petition.) However, the Consul may uncover information or documents, showing that the person is not entitled to the particular benefit applied for (i.e. the Consul may have uncovered fraud, a secret marriage, the petitioner has died, the alien does not appear qualified for the visa, etc.). 

By law, since it was US Citizenship and Immigration Services (USCIS) that approved the petition, the Consul does not have the authority to revoke the petition. Instead, the Consul must return the petition to USCIS for revocation. The procedure for the Embassy to return petitions to USCIS for revocation includes the following:

1. The Consuls must use Form DS-3096 as the “cover sheet,” indicating the type of petition, and checking a box on the form, listing the reason the Consul believes the alien is not entitled to the visa. 

2. The Consul must also prepare a memorandum or “comprehensive report” to the USCIS, explaining in detail the reasons why the beneficiary appears not to be entitled to the requested status.

3. The report, “must be comprehensive, clearly showing factual and concrete reasons for revocation. The report must be well reasoned and analytical rather than conclusory. Observation made [by the consular officer] cannot be

conclusive, speculative, equivocal, or irrelevant.” In other words, in returning a petition for revocation, the consul must have specific, detailed facts, as opposed to a mere hunch or “gut feeling” about the alien. 

4. The Consul must send the petition, Form DS-3096, and the comprehensive memorandum to the NVC’s Fraud Prevention Manager. The NVC will then send the documentation to the USCIS office that approved the petition.

5. The Embassy is to “retain a copy of the petition, the supporting documents and the memorandum.”

Unfortunately, when a consul returns a petition to USCIS for revocation, it could sometimes take a year or more for USCIS to act on the case. Typically, the procedure is that once USCIS finally reviews the case, they send a Notice to the petitioner or beneficiary, giving them a chance to respond, or offer proof of the alien’s eligibility. But again, this could take a year or more before that happens.

But there are other provisions of the Foreign Affair’s Manual that state that Consuls should re-consider a previous refusal, if the applicant provides, within one year of the refusal, additional persuasive evidence demonstrating entitlement to the benefit. Moreover, because the Embassy is to retain a copy of the petition and supporting documentation, the Consul would still have the case and the file available to him, if grounds exist for reconsideration. 

That is why it is so important that if you are not entitled to a particular benefit, or no longer entitled to that benefit, you should not apply. But if you believe you are eligible, and were refused because of some miscommunications, misunderstandings, or your inability to properly prove or document your eligibility for the visa, I would strongly suggest that you seek the advice of a reputable attorney, who can evaluate your situation and advise you on the best course of action, whether it is seeking reconsideration from the Consul, or waiting to respond to a future notice from USCIS.

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