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Chapter 5 - Adjudication Procedures

USCIS officers review the evidence in the record to determine whether the evidence supports the initiation of rescission of lawful permanent resident (LPR) status.

The central issue in rescission proceedings is whether the alien was ineligible for adjustment of status at the time LPR status was granted.

A. Notice of Intent to Rescind

Once USCIS determines that an LPR’s status should be rescinded, USCIS issues a Notice of Intent to Rescind (NOIR).[1] The NOIR must include why the alien was not eligible for adjustment of status at the time LPR status was granted and all of the alien's rights and options during rescission proceedings.

The NOIR must be sent by certified mail, with return receipt requested, or delivered to the alien in person.[2] It must include the following:

  • The background of the case, including the basic facts pertaining to the alien’s adjustment;

  • The information that has arisen indicating that the alien was not eligible for adjustment of status. If the file does not establish that the alien is already aware of this information, the notice must also inform the alien of his or her right to review the information;

  • The various steps of the alien’s immigration history that led to his or her ineligibility for LPR status;

  • Any and all pertinent information in order to give the alien the opportunity to respond or rebut the allegations;

  • All the grounds of inadmissibility applicable to the alien and the reasons that these grounds of inadmissibility apply, as well as ineligibility for any other preference classification;[3]

  • USCIS' statutory and regulatory authority to rescind the adjustment and intent to do so; and

  • The alien’s options should he or she decide to contest the NOIR.

If fraud of any kind was involved, the NOIR must specifically define the fraud. For example, in order to deny or to subsequently rescind LPR status based on a marriage, the evidence must establish that the marriage was a sham or fraudulent, or that it was legally dissolved at the time of the adjustment. A marriage which was non-viable at the time of adjustment (for example, where the couple has separated without chance of reconciling), but not necessarily fraudulent, may not support a rescission.[4]

The alien must be informed and permitted to rebut all allegations contained in the NOIR. A rescission proceeding is invalid if the NOIR does not advise the alien of:

  • The right to rebut the allegations;

  • The right to counsel (at no expense to the government); and

  • The right to request a hearing before an immigration judge (IJ).

The NOIR must advise the alien that the response must be in writing, under oath, and submitted to USCIS within 30 days of the receipt of the NOIR. USCIS must give the alien an opportunity to respond to the NOIR before proceeding to the next stage.[5]

B. Alien’s Response to Notice of Intent to Rescind

Upon receipt of the NOIR, the alien may:

  • Fail to respond to the notice;

  • Admit all allegations, surrender his or her permanent resident card (Form I-551) (commonly called a green card), and depart the United States, if necessary;

  • Submit a written answer to the allegations contained in the NOIR, under oath, to contest any allegation; or

  • Request a hearing before the IJ.

C. Action Following Response to Notice of Intent to Rescind

The next stage of the process is dependent on which option the alien chose upon receipt of the NOIR.

1. Alien Admits All Allegations or Fails to Respond

If the alien fails to respond to the NOIR or responds to the NOIR by admitting all allegations, the rescission becomes final. USCIS sends the alien a letter by certified mail, return receipt requested, informing the alien that his or her LPR status has been rescinded pursuant to INA 246 and instructing the alien to surrender his or her permanent resident card to the nearest USCIS office. The alien may not appeal that decision.[6]

2. Alien Contests the Allegations or Requests Hearing Before Immigration Judge

If the alien contests any of the allegations in the NOIR or specifically requests a hearing before an IJ, then USCIS refers the case for a rescission hearing before an IJ.[7] The respondent can appeal the IJ’s decision.[8]

D. Final Action After Adjustment Has Been Rescinded

Upon rescission, USCIS places the alien into removal proceedings under INA 240 with a Notice to Appear, unless the alien is otherwise in a lawful status or in a period of stay authorized by the secretary.[9]

In addition, USCIS requests the alien surrender his or her permanent resident card (Form I-551) to the district director with administrative jurisdiction over the office where the alien obtained LPR status.[10]

Footnotes


[^ 1] See 8 CFR 246.1.

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

[^ 3] For example, if the alien had already obtained a permanent labor certification, and a visa number was available to the alien, but the alien then married a U.S. citizen and adjusted status on the basis of that marriage, rescission proceedings due to ineligibility for adjustment of status based on that marriage would be appropriate only if the alien would also have been ineligible for adjustment under an employment-based preference classification.

[^ 4] See Matter of Boromand (PDF), 17 I&N Dec. 450 (BIA 1980). For information regarding termination of status of CPRs whose status was obtained based on a marriage, see Chapter 3, Rescission Process, Section B, Rescission of Adjustment of a Conditional Permanent Resident, Subsection 1, Certain Alien Spouses and Sons and Daughters Defined in INA 216 [7 USCIS-PM Q.3(B)(1)].

[^ 5] See 8 CFR 246.1.

[^ 6] See 8 CFR 246.2.

[^ 7] See 8 CFR 246.3.

[^ 8] See 8 CFR 246.7.

[^ 9] For more information on NTA issuance, see Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF) (PDF, 327.19 KB), PM-602-0050.1, issued June 28, 2018.

[^ 10] See 8 CFR 246.9.

Resources

Legal Authorities

8 CFR 246 - Rescission of adjustment of status

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”].