Chapter 3 - Rescission Process
In order to rescind a person’s adjustment to lawful permanent resident (LPR) status, USCIS must serve the person through personal service a Notice of Intent to Rescind (NOIR) within 5 years of the date of his or her adjustment. Once the NOIR has been served, rescission action may proceed even beyond the 5-year time limit (in other words, the serving of the NOIR “stops the clock”). In the case of a person whose adjustment contained a “rollback” provision (for example, a Cuban who adjusted under the Cuban Adjustment Act), the 5-year time period is calculated from the actual date on which the adjustment was granted, not on the date to which the adjustment was rolled back.
The USCIS district office that has jurisdiction over the person's place of residence initiates rescission proceedings. The sole exception is, if he or she adjusted status by way of a grant of suspension of deportation or a grant of special rule cancellation of removal, the asylum office that has jurisdiction over the place of residence initiates rescission proceedings. In all other cases, including adjustments granted by another USCIS office, the USCIS district office having jurisdiction over the person’s residence has jurisdiction over the initiation of rescission proceedings. As a matter of policy, USCIS does not initiate rescission proceedings if adjustment was granted by an immigration judge.
With regards to conditional permanent residents (CPRs), the period of time that he or she is in CPR status counts as part of the 5-year limitation under INA 246. However, USCIS generally does not use the rescission authority of INA 246 for those who are CPRs.
In general, USCIS terminates a person’s CPR status if USCIS determines, before the second anniversary of obtaining CPR status, that the qualifying marriage was improper because:
The qualifying marriage was entered into for the purpose of procuring a person’s admission as an immigrant;
The qualifying marriage has been judicially annulled or terminated, other than through the death of a spouse; or
A fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for filing of a petition under INA 204(a) or INA 214(d) or (p) with respect to the noncitizen.
In general, USCIS also terminates CPR status if:
The CPR and petitioning spouse fail to appear for their interview in connection with a jointly filed Form I-751, or the CPR fails to appear for his or her interview in connection with Form I-751 filed based on hardship waiver; or
If a person becomes removable as a result of an event that occurred after adjustment of status to lawful permanent residence, he or she is not subject to rescission as a result of the event. However, the officer may refer the case for possible initiation of removal proceedings if the person is deemed removable.
In general, naturalization is revoked before the rescission of adjustment of status.
[^ 13] See Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF, 599.37 KB), PM-602-0050.1, issued June 28, 2018.
[^ 14] INA 246(b) provides that a person whose adjustment of status has been rescinded is subject to revocation of naturalization under INA 340. For additional information, see Volume 12, Citizenship and Naturalization, Part L, Revocation of Naturalization [12 USCIS-PM L].