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To All Diplomatic Posts.
A. PROCESSING REVOCATIONS OF NONIMMIGRANT VISAS BY MADELEINE K. ALBRIGHT - 12/30/1999 ON PETITIONED VISAS
Many consulates (particularly those in Eastern Europe, South America and parts of Asia) seem to routinely re-adjudicate petitions previously approved by the INS. It has always been our understanding that consulates may investigate approved petitions for misrepresentations or fradulant documentation, but that they may not re-adjudicate cases.
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B. REMINDER REGARDING VISA REFUSAL PROCEDURES BY COLIN A. POWELL VIA VISA OFFICE - 06/12/2001 ON NON-PETITIONED VISAS
I am sending this message because I want to remind all consular officials of the current rules that must be followed for refusals of visas. It is important that consular officers follow all statutory and regulatory provisions in the issuance and refusal of visas -- we must exercise caution and work within the fundamental legal framework that governs visa adjudication law. This is not a matter or traditionalism or resistance to change. As stated in 9 FAM 41.121 N2, it is the policy of the Department of State to give visa applicants every reasonable opportunity to establish their eligibility to receive a visa. We are wary of any practices or procedures that may encroach on or in any way potentially jeopardize this doctrine [of consular non-reviewability]. Visa refusals, however, require extra protections, and there are limits to how far we can go in that area.
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C. GUIDANCE ON PETITION REVOCATIONS BY COLIN A. POWELL - July 1, 2001 ON PETITIONED VISAS
1. Posts should be judicious about returning petitions, since the revocation process is lengthy and the evidentiary standard that must be met to sustain a petition revocation is relatively high.
2. ..posts return relatively few petitions to BCIS for revocation. This is a positive practice from our perspective, since petitions should only be returned to BCIS when fraud or misrepresentation or ineligibility for status can be clearly established or when the petition merits automatic revocation because of such circumstances as the death of the petitioner.
3. In all cases BCIS approval of a petition is prima facie evidence of the applicant's status.. a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means.
4. ..posts seeking revocations must show the "factual and concrete reasons for revocations." BCIS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law.
5. Posts should not return petitions to BCIS based on mere suspicion or as a substitute for making a decision at post. If the evidence of fraud, misrepresentation, or ineligibility for status is strong enough to lead to a likely revocation, returning the petition would be warranted. However, if the evidence is not likely to lead to a revocation and returning the petition would be a wasted exercise, the petition should not be returned. Returning cases that are only suspect or that appear too complex to figure out is not appropriate and only increases BCIS'' administrative burden and prevents the applicants and petitioners in these cases from obtaining the timely decision on their petitions to which they are entitled.
6. In absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa.
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D. GUIDELINES AND CHANGES FOR RETURNING DHS/BCIS APPROVED IMMIGRANT VISA & NONIMMIGRANT VISA PETITIONS BY COLIN A. POWELL - February 24, 2004 ON PETITIONED VISAS
5. The department is regularly named as a co-defendant with DHS in cases involving the return of petitions to DHS.
6. The memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; 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.
7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification have been met.
8. DHS regulations require DHS/BCIS 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 revocations must be based only on grounds specified in the regulations.
9. 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. Memo supporting petition returns should be scrutinized carefully 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.
11. INA 212(b) requires the conoff 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; (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.. [petitioner's] confidentiality concerns. 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.
A. PROCESSING REVOCATIONS OF NONIMMIGRANT VISAS BY MADELEINE K. ALBRIGHT - 12/30/1999 ON PETITIONED VISAS
Many consulates (particularly those in Eastern Europe, South America and parts of Asia) seem to routinely re-adjudicate petitions previously approved by the INS. It has always been our understanding that consulates may investigate approved petitions for misrepresentations or fradulant documentation, but that they may not re-adjudicate cases.
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B. REMINDER REGARDING VISA REFUSAL PROCEDURES BY COLIN A. POWELL VIA VISA OFFICE - 06/12/2001 ON NON-PETITIONED VISAS
I am sending this message because I want to remind all consular officials of the current rules that must be followed for refusals of visas. It is important that consular officers follow all statutory and regulatory provisions in the issuance and refusal of visas -- we must exercise caution and work within the fundamental legal framework that governs visa adjudication law. This is not a matter or traditionalism or resistance to change. As stated in 9 FAM 41.121 N2, it is the policy of the Department of State to give visa applicants every reasonable opportunity to establish their eligibility to receive a visa. We are wary of any practices or procedures that may encroach on or in any way potentially jeopardize this doctrine [of consular non-reviewability]. Visa refusals, however, require extra protections, and there are limits to how far we can go in that area.
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C. GUIDANCE ON PETITION REVOCATIONS BY COLIN A. POWELL - July 1, 2001 ON PETITIONED VISAS
1. Posts should be judicious about returning petitions, since the revocation process is lengthy and the evidentiary standard that must be met to sustain a petition revocation is relatively high.
2. ..posts return relatively few petitions to BCIS for revocation. This is a positive practice from our perspective, since petitions should only be returned to BCIS when fraud or misrepresentation or ineligibility for status can be clearly established or when the petition merits automatic revocation because of such circumstances as the death of the petitioner.
3. In all cases BCIS approval of a petition is prima facie evidence of the applicant's status.. a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means.
4. ..posts seeking revocations must show the "factual and concrete reasons for revocations." BCIS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law.
5. Posts should not return petitions to BCIS based on mere suspicion or as a substitute for making a decision at post. If the evidence of fraud, misrepresentation, or ineligibility for status is strong enough to lead to a likely revocation, returning the petition would be warranted. However, if the evidence is not likely to lead to a revocation and returning the petition would be a wasted exercise, the petition should not be returned. Returning cases that are only suspect or that appear too complex to figure out is not appropriate and only increases BCIS'' administrative burden and prevents the applicants and petitioners in these cases from obtaining the timely decision on their petitions to which they are entitled.
6. In absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa.
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D. GUIDELINES AND CHANGES FOR RETURNING DHS/BCIS APPROVED IMMIGRANT VISA & NONIMMIGRANT VISA PETITIONS BY COLIN A. POWELL - February 24, 2004 ON PETITIONED VISAS
5. The department is regularly named as a co-defendant with DHS in cases involving the return of petitions to DHS.
6. The memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; 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.
7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification have been met.
8. DHS regulations require DHS/BCIS 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 revocations must be based only on grounds specified in the regulations.
9. 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. Memo supporting petition returns should be scrutinized carefully 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.
11. INA 212(b) requires the conoff 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; (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.. [petitioner's] confidentiality concerns. 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.
