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Chapter 1 - Purpose and Background

A. Purpose

Rescission proceedings serve the goal of removing an alien’s lawful permanent resident (LPR) status when USCIS determines that the alien was not eligible for adjustment of status at the time LPR status was granted. Rescission places the alien in the same standing that he or she would have been in if USCIS had never granted adjustment of status. In certain limited circumstances, this can result in the alien being in a period of authorized stay or having some form of lawful immigration status even after rescission. In most instances, however, it results in the alien having no lawful status and not being in a period of authorized stay, and therefore subject to removal proceedings. A contested rescission proceeding requires a hearing before an immigration judge (IJ), so most cases subject to possible rescission are placed in removal proceedings instead of rescission proceedings.

B. Background

Rescission is a cumbersome process that was once required before the initiation of removal proceedings against certain LPRs.[1] Rescission is now an option that USCIS uses only in limited instances. In most cases, USCIS can and should place the alien into removal proceedings under INA 240 with a Notice to Appear.[2] Any subsequent order of removal issued by an IJ is now sufficient to rescind the LPR’s status. Because most cases that used to require rescission (for example, adjustment obtained by fraud) now may be resolved in the context of removal proceedings under INA 240, rescission should be an infrequent process.[3]

C. Legal Authorities

  • INA 246 – Rescission of adjustment of status; effect upon naturalized citizen; 8 CFR 246 – Rescission of adjustment of status

Footnotes


[^ 1] See Matter of Saunders (PDF), 16 I&N Dec. 326 (BIA 1977) (lawful permanent resident who (1) obtained his or her status through adjustment of status and (2) was subject to the rescission provisions of INA 246 could not be placed into deportation proceedings prior to rescission of his or her status by legacy Immigration and Naturalization Service (INS)).

[^ 2] See INA 246.

[^ 3] See Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009) (PDF). In 2009, the U.S. Court of Appeals for the Third Circuit issued Garcia v. Attorney General, which held that the U.S. Government must initiate either rescission or removal proceedings within 5 years or else is barred from initiating removal proceedings. The Third Circuit relied on Bamidele v. INS, a Third Circuit pre-Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) case that interpreted the time limitation of INA 246 to apply to removal proceedings as well as rescissions. The decision only applies to cases that fall within the jurisdiction of the Third Circuit.

Resources

Legal Authorities

8 CFR 246 - Rescission of adjustment of status

INA 240 - Removal proceedings

INA 246 - Rescission of adjustment of status; effect upon naturalized citizen

Appendices

No appendices available at this time.

Updates

Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 22.3 and 26 of the AFM, related appendices, and policy memoranda.

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].