You’ve worked hard putting together your visa petition to bring a family member to the United States. You’ve received approval from U.S. Citizenship and Immigration Services (USCIS), submitted all of the documents for consular processing, and are now just awaiting issuance of the visa to your loved one. Not so fast! Most people think that receiving a USCIS approval notice is final. But for an unlucky few, the U.S. government may revoke (or cancel) a previously approved petition.
You will have some warning, however. Prior to revoking, the government will send 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, realize that you are embarking on a possibly long and difficult road to salvage the petition.
USCIS can issue a NOIR for any type of visa petition: immigrant visa 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 visa 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.
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 ti 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.
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 someone from immigrating based on criminal history, drug abuse, serious medical problems, or other characteristics laid out in the law. Unlike revocation, a consular determination of inadmissibility does not cancel out the underlying petition.
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 may tell the consular officer something that 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.
In some instances, the consular officer will warn the beneficiary at the interview that he or she intends to seek revocation. In other instances, the consular officer may tentatively approve the visa, then later initiate the revocation process after discovering new and unfavorable information.
Before returning a case to USCIS, the consulate must first inform the visa applicant, so receiving the NOIR from USCIS should come as no surprise. Worryingly, however, the consulate need not give its reasons for seeking revocation. While some consular officers may tell a beneficiary why they are returning the petition, others will not.
The consulate will return the petition, along with all supporting documentation and investigative results, to the USCIS office that originally approved the petition, together with a memorandum detailing reasons the petition should be revoked.
USCIS will then issue a NOIR to the petitioner, providing a specific statement of the facts underlying the proposed revocation and any supporting evidence. It can take over six months for the case to transfer from the consulate to USCIS, and for USCIS to actually issue the Notice of Intent to Revoke.
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 may read like a laundry list, but one or two points typically make up the heart of the letter. Some of the most common reasons that USCIS seeks to revoke a petition are:
If you receive a NOIR, you will likely have 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, even if you believe that you previously addressed it. Any point that you are perceived as having failed to address will be grounds to revoke the petition.
Consult with the beneficiary before crafting your response. The foreign beneficiary is in the best position to tell you exactly what the consular officer said in the interview.
If the NOIR questions the legitimacy of your relationship, do not merely resubmit the same evidence you 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 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 may 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.
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 may 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 make an InfoPass appointment at the local USCIS office before doing so.
If your NOIR response satisfies USCIS, it will forward your application back to the consulate. You and the beneficiary will have to repeat of the consular processing steps. The 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 may 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 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 fiancé(e) petition 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.
While the government does not publish statistics, many immigration practitioners believe that there has been an increase in the issuance of NOIRs under the Trump administration. 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.