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Chapter 3 - Rescission Process

In order to rescind an alien’s adjustment to lawful permanent resident (LPR) status, USCIS must serve the alien through personal service[1] a Notice of Intent to Rescind (NOIR) within 5 years of the date of his or her adjustment.[2] 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 an alien 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.[3]

A. Jurisdiction

The USCIS district office that has jurisdiction over the alien's place of residence initiates rescission proceedings.[4] The sole exception is, if the alien 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 the alien’s residence initiates rescission proceedings.[5] 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.[6] As a matter of policy, USCIS does not initiate rescission proceedings if adjustment was granted by an immigration judge.

B. Rescission of Adjustment of a Conditional Permanent Resident

With regards to conditional permanent residents (CPRs), the period of time the alien 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 aliens who are CPRs.

1. Certain Alien Spouses and Sons and Daughters Defined in INA 216

If USCIS determines that an alien’s CPR status should be terminated for the reasons set forth in INA 216, then USCIS generally does not use the rescission authority of INA 246.

In general, USCIS terminates an alien’s CPR status if USCIS determines, before the second anniversary of the alien obtaining CPR status, that the qualifying marriage was improper because:

  • The qualifying marriage was entered into for the purpose of procuring an alien’s admission as an immigrant;[7]

  • The qualifying marriage has been judicially annulled or terminated, other than through the death of a spouse;[8] 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 alien.[9]

In general, USCIS also terminates the alien’s CPR status if:

  • The CPR does not file a Petition to Remove Conditions on Residence (Form I-751) which requests the removal of the conditions on the alien’s permanent resident status.[10]

  • 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;[11] or

  • USCIS makes an adverse determination and denies Form I-751.[12]

If USCIS discovers the CPR was not eligible for adjustment of status, but the alien’s CPR status should not be terminated pursuant to INA 216, then USCIS may use the rescission authority of INA 246.

2. Certain Alien Entrepreneurs, Spouses, and Children Defined in INA 216A [Reserved]

C. Deportability Based on Events Arising After Adjustment

If an alien 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 alien is deemed removable.[13]

D. Rescission of Adjustment After Alien Has Naturalized

In general, a naturalization is revoked before the rescission of adjustment of status.[14]

Footnotes


[^ 1] See 8 CFR 103.8(a)(2).

[^ 2] See 8 CFR 246.1.

[^ 3] See Matter of Carrillo-Gutierrez (PDF), 16 I&N Dec. 429 (BIA 1977).

[^ 4] See 8 CFR 246.1.

[^ 5] See 8 CFR 240.70.

[^ 6] See 8 CFR 246.1.

[^ 7] See INA 216(b)(1)(A)(i). See 8 CFR 216.3.

[^ 8] See INA 216(b)(1)(A)(ii).

[^ 9] See INA 216(b)(1)(B). See 8 CFR 216.3.

[^ 10] See INA 216(c)(2)(A)(i) and INA 216(c)(4). See 8 CFR 216.4(a)(6).

[^ 11] See INA 216(c)(2)(A)(ii). See 8 CFR 216.4(b)(3) and 8 CFR 216.5(d).

[^ 12] See INA 216(c)(3)(C). See 8 CFR 216.4(d)(2) and 8 CFR 216.5(f).

[^ 13] See Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF, 327.19 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].

Resources

Legal Authorities

8 CFR 240.70 - Decision by the Service

8 CFR 246 - Rescission of adjustment of status

INA 204(a) - Procedure for granting immigrant status; petitioning procedure

INA 204(c) - Procedure for granting immigrant status; limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriage entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud

INA 214(d) - Admission of nonimmigrants; issuance of visa to fiancée or fiancé of citizen

INA 214(p) - Admission of nonimmigrants; requirements applicable to section 1101(a)(15)(U) visas

INA 216, 8 CFR 216 - Conditional permanent resident status for certain alien spouses and sons and daughters

INA 216A, 8 CFR 216.6 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

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

INA 340 - Revocation of naturalization

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”].