Why Did I Get a USCIS Notice of Intent to Revoke Petition for My Overseas Spouse or Family?

You've worked hard putting together your I-130 petition to bring a foreign-born family member to the United States, received approval from U.S. Citizenship and Immigration Services (USCIS), submitted all the documents for consular processing, and are now awaiting issuance of the immigrant visa to your loved one. Not so fast! Most people think that receiving a USCIS approval notice is final, and that the petition, at least, is definitively taken care of. But for an unlucky few, the U.S. government may actually revoke (or cancel) a previously approved petition. Here, we'll explain why, and what will happen next.

Positive Side of an NOIR: It's a Chance to Save the Green Card Application

Prior to revoking, the U.S. government sends a letter called a Notice of Intent to Revoke (NOIR) to the petitioner (the U.S.-based person who applied for a foreign family member). Although this gives you a chance to respond, it's true that you are embarking on a possibly long and difficult road to salvage the petition.

What Is—and Isn't—a Notice of Intent to Revoke?

A Notice of Intent to Revoke letter is sent by USCIS to the petitioner of a previously approved visa petition, stating that USCIS plans to revoke it, due to the discovery of new, derogatory information. Although the allegations contained in the NOIR often refer to things that arose at or following the foreign beneficiary's consular interview, the consulate itself cannot issue a NOIR. Instead, the consulate must return the entire application to USCIS along with the results of any investigation.

By the way, USCIS can issue a NOIR for any type of visa petition: immigrant petitions based on family or employment (USCIS Form I-130 for an alien spouse or family member or I-140 for an employee) and nonimmigrant visa petitions (such as Form I-129F for an alien fiancé(e)). The same petition forms are used for beneficiaries overseas and already in the United States. This article focuses on the most common instance: when USCIS issues a NOIR for a petitioner who has filed either an I-130 or I-129F for an overseas beneficiary.

NOIRs are often confused with two other types of USCIS letters: the Notice of Intent to Deny (NOID) and the Request for Evidence (RFE). Unlike a NOID or an RFE, USCIS issues a NOIR after a petition has already been approved. A NOIR is, arguably worse than either a NOID or RFE, because of the high stakes involved and the often extremely long wait before USCIS sends the petitioner and family member (beneficiary) a final decision.

A NOIR is also different from a determination of inadmissibility, in which the consulate bars an applicant from immigrating based on criminal history, drug abuse, serious medical problems, or other characteristics laid out in U.S. immigration law. Unlike revocation, a consular determination of inadmissibility does not cancel out the underlying petition.

When Does USCIS Issue a Notice of Intent to Revoke an I-130?

After USCIS has approved an I-130 petition, it normally forwards the case to the U.S. Department of State for additional processing. This typically culminates with a consular officer interviewing the foreign beneficiary prior to issuing a visa. It is at this stage that issues most commonly arise.

The foreign beneficiary might, for instance, tell the consular officer something damaging, which makes it appear that the petition should be revoked. For example, in a marriage-based green card application, the immigrating spouse might be unable to recall basic information about the U.S. citizen petitioner, such as number of children or birthday, leading the consular officer to conclude that the marriage is not bona fide.

The consular officer might warn the beneficiary at the interview that they intend to seek revocation; or might tentatively approve the visa, but later initiate the revocation process after discovering new and unfavorable information.

Before returning a case to USCIS for reconsideration of the I-130 approval, the U.S. consulate must first inform the visa applicant, so that receiving the NOIR from USCIS comes as no surprise. Worryingly, however, the U.S. consulate need not give reasons for seeking revocation. While some consular officers might tell a beneficiary why they are returning the petition, others will not.

The consulate will return the I-130 petition, along with all supporting documentation and investigative results, to the USCIS office that originally approved it, together with a memorandum detailing reasons it should be revoked.

USCIS will then issue a NOIR to the U.S. petitioner, providing a statement of the facts underlying the proposed revocation and any supporting evidence. It can take many months for the case to transfer from the consulate to USCIS, and for USCIS to actually issue the Notice of Intent to Revoke.

Why Did We Receive an NOIR?

USCIS can revoke a petition for good cause under Section 205 of the Immigration and Nationality Act (I.N.A.). The NOIR will include the reasons for proposed revocation. It might read like a dull list, but one or two points typically make up the heart of the letter. Some of the most common reasons USCIS seeks to revoke a petition are:

• Potential fraud or misrepresentation. (I.N.A. Section 221(g).) This is the most common reason for a NOIR. Perhaps the beneficiary failed to answer basic questions about the relationship, leading the officer to conclude that this was a sham marriage. Or the beneficiary might have submitted documentation that appeared to have been faked.
• U.S. petitioner's ineligibility to act as sponsor. The consular officer could have discovered information that USCIS missed, such as the U.S. spouse still being married to someone else, or in the case of a K-1 fiancé visa, having an undisclosed domestic violence conviction.
• Beneficiary's ineligibility for the visa. New information might have revealed that a spouse beneficiary is legally married to someone else, or previously tried to commit marriage fraud. (Under I.N.A. Section 204(c), no petition can be approved if the beneficiary previously entered into a sham marriage to receive an immigration benefit.) Or, in the case of a child beneficiary, information could have turned up showing that the child recently married and thus lost eligibility to immigrate as the child of a U.S. permanent resident.
• Discovery of derogatory information based on separate investigation. Some consulates (particularly those in Africa) conduct their own investigations into issues like the legitimacy of a relationship, prior to the interview. This often involves an embassy official going to the beneficiary's residence and questioning the neighbors. Consular officers may use this as justification for claiming that the relationship is not legitimate, despite the possibility that the neighbors hardly see or know the immigrating beneficiary.
• A mistake or misinterpretation by the interviewing officer. The U.S. consular officer could have misheard or misinterpreted a response from the beneficiary (particularly if there are language issues), leading the officer to wrongly believe the petition should be revoked. It's also not unheard of for a consular officer to make a mistake in the investigation, such as going to a different house than the beneficiary's and interviewing the wrong set of neighbors.
• Improper conduct by the interviewing officer. In rare cases, the basis for the NOIR could be unfounded, perhaps colored by the prejudices of the interviewing officer. Some overzealous consular officers improperly seek to reinvestigate and rule upon the original I-130 petition. Although a consular officer has a great deal of discretion in deciding an application, the officer does not have the right to engage in speculative or irrelevant lines of questioning outside the scope of the immigration benefit sought. Nor can an officer send a petition back to USCIS for revocation based on purely conclusory remarks without an evidentiary basis.

How to Respond to an NOIR

If you receive an NOIR, you will likely be given only 30 days to respond before USCIS goes ahead and revokes the petition. However, some jurisdictions permit petitioners to supplement with additional information after submitting an initial response.

Before responding, read and fully understand the NOIR. Make sure to address every single point in your response, even if you believe that you previously addressed it. Any point that you are perceived as having failed to address will be viewed as grounds to revoke the petition.

Consult with the immigrant beneficiary before crafting your response. In particular, ask about what the consular officer said in the interview, to gain more insights into the cause for possible revocation.

If the NOIR questions the legitimacy of your relationship, do not merely resubmit the same evidence filed with the initial I-130 petition. You'll need to find evidence that's sufficiently convincing to overcome the presumption that the petition should be revoked. For ideas on additional documents to provide in a NOIR response in a marriage-based case, see Proving the Bona Fides of Your Marriage for Immigration Purposes.

If the basis of the NOIR is that a U.S. consular officer uncovered allegedly incriminating evidence about your marriage from a neighbor or other third party, make sure to provide a rational explanation in a cover letter. For example, a personal vendetta or simple ignorance on the part of the neighbor could explain a negative response. You might need to have the beneficiary help get affidavits from other neighbors, family members, employers, religious leaders or figures of authority in the community who are aware of the relationship (see Creating Substitute Documents or Affidavits for Immigration Applications).

Some grounds for revocation listed in the NOIR could be difficult or impossible to overcome. For example, if the NOIR states that the petitioner was married to more than one person at the time of filing the petition, and the investigation has turned up compelling evidence to support this allegation, the petition will more than likely be revoked. Consult with an immigration attorney to determine your chances of success.

You've Submitted an NOIR Response—Now What?

Once you have submitted your rebuttal to the NOIR, prepare for a lengthy waiting game. There is no statutory length of time within which USCIS must render a decision. Because the agency might be investigating your and the beneficiary's background (and collaborating with the consulate overseas), it's not uncommon for applicants to wait over a year before receiving a decision.

If you gather new evidence while waiting for the decision on your NOIR response, most USCIS jurisdictions will allow you to supplement. However, consult with an attorney or talk to someone at the USCIS Contact Center before doing so.

If your NOIR response satisfies USCIS, it will forward your application back to the consulate. You and the foreign-born beneficiary will have to repeat the consular processing steps. The U.S. consulate will grant deference to the decision by USCIS not to revoke the petition and will not pursue revocation for the same issues again. (However, it is possible, albeit unlikely, that the consular officer could seek to revoke on the basis of different issues not contemplated in the original NOIR.)

If your NOIR response is unsatisfactory and USCIS revokes your petition, you will have only 15 days in which to file an appeal. Given this short time frame, you might wish to consult with a qualified immigration attorney. If the final decision by USCIS relies upon derogatory evidence that was not clearly provided to the you in the NOIR, you will have a strong argument on appeal.

Instead of appealing, you may also refile the entire I-130 visa petition and pay all the fees again, correcting whatever issue was listed in the revocation notice. However, if you do refile, your new petition is going to receive extensive additional scrutiny, given your history.

Refiling the petition is often the best option when the petitioner and beneficiary are already married. For engaged couples, however, refiling a K-1 fiancé(e) petition (Form I-129F) is not a good choice, given the degree of suspicion that will surround their case. It is more effective to get married and file an I-130 spousal petition.

A petitioner can file a new petition even if USCIS has not yet issued a final decision regarding revocation of the initial petition.

Getting Legal Help

Notices of intent to revoke are complex and difficult to overcome. Because of the high stakes, you may wish to consult a qualified immigration attorney.