\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 20 Immigrants in General \ 20.3 Petition Revocation.
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Grounds for automatic revocation are set forth in 8 CFR 205.1.
A relative petition may be automatically revoked if the petitioner withdraws the petition, if the petitioner or beneficiary dies, upon legal termination of the marriage upon which the petition was based, upon the marriage of a second preference unmarried son or daughter, or upon the termination of status of a lawful permanent resident petitioner (unless he or she becomes a U.S. citizen). There are other provisions for revocation which allow for automatic conversion to a different classification. In the ca
se of the death of the petitioner,
may choose not to revoke the petition for humanitarian reasons. [NOTE: Opting not to revoke a petition is a matter strictly within the discretion of
. There is no application which can be filed to seek “non-revocation,” and no formal decision issued by
(although a letter from an interested party setting forth the facts of the case and a reply from
advising that we have or have not exercised our option not to revoke would not be inappropriate), and no right of appeal from a conclusion not to exercise our option.]
An employment-based petition may be automatically revoked if the labor certification is invalidated, if the petitioner or beneficiary dies, if the petitioner withdraws the petition, or if the petitioner goes out of business.
The Department of State may also terminate the registration of any alien who does not apply for an immigrant visa within one year of being notified of the availability of the visa. This provision is found in Section 203(g) of the Act.
If a Consular officer obtains information that a petition has been automatically revoked or if registration has been terminated under 203(g), the petition will be returned to
. You must send a notice to the petitioner that the petition has been automatically revoked or terminated.
receives the information, you must request that the Department of State return the petition before sending out the notice to the petitioner. If the petition is at the National Visa Center (NVC) or at certain consuls, the request may be made by telephone; otherwise, a cable is usually the best option.
Revocation on Notice
Refer to the regulations relating to each classification for the grounds upon which revocation on notice may occur. The approval of an immigrant visa petition which is not automatically revoked under 8 CFR 205 may be revoked upon notice to the petitioner in accordance with 8 CFR 205.2.
Notice of Intention to Revoke
The first step of revocation is to retrieve the petition from the consular or
office where it is located. Retrieval of the petition from a consular office may be accomplished by sending a cable to the consular office requesting that the petition be returned for possible revocation. If the petition is still at NVC, the request may be made by telephone.
After the petition has been retrieved, you must notify the petitioner of your intent to revoke the petition. The letter should fully explain the reasons for the revocation and give the petitioner a reasonable period of time (usually 30 days) to submit evidence in opposition to the revocation. Additional time may be granted if the petitioner needs it to obtain documentation from abroad or other meritorious reasons. An A-file should be created to house the petition while waiting for the response.
In some cases the action to revoke the petition may be initiated by the consular office due to information acquired during their review of the petition or during an interview with the beneficiary. In that case the petition should be returned by the consular office with a memo explaining the reasons they believe the petition should be revoked. You may find that the petition is not revocable for the reasons stated by the consular office. If that occurs, the petition must be returned to the consular office
with an explanation of your decision not to revoke the petition.
If the petitioner responds and satisfies you that the approval should not be revoked, advise the petitioner of your decision to reaffirm the petition by letter. If the petition was retrieved from a consular office, return the petition to the consular office with copies of your letter of intent to revoke, the petitioner's response, and your letter of reaffirmation.
If the petitioner does not overcome the basis for the revocation, or fails to respond timely, prepare a decision of revocation. A petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally, except that the authorized period for filing the appeal is only 15 days regardless of the type of petition. A petitioner may also file a motion to reopen or reconsider the decision revoking the decision. As required in Chapter 10.7(b)(5) of this manual, the revocation decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.
Do not institute revocation proceedings if the beneficiary has already been adjusted or has been admitted to the United States with an immigrant visa. When the petition has been used, in effect, it no longer exists and the approval cannot be revoked. The appropriate course of action in that case is to institute deportation or rescission proceedings.