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Once USCIS determines that an LPR’s status should be rescinded, USCIS issues a Notice of Intent to Rescind (NOIR).[1] The NOIR must include why the person was not eligible for adjustment of status at the time LPR status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

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

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

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

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

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

  • All the grounds of inadmissibility applicable to the person 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 person’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 person 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 person 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 person 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 person an opportunity to respond to the NOIR before proceeding to the next stage.[5]

B. Response to Notice of Intent to Rescind

Upon receipt of the NOIR, the person 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 person chose upon receipt of the NOIR.

1. Admits All Allegations or Fails to Respond

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the person a letter by certified mail, return receipt requested, informing them that his or her LPR status has been rescinded pursuant to INA 246 and instructing the person to surrender his or her permanent resident card to the nearest USCIS office.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

2. Contests the Allegations or Requests Hearing Before Immigration Judge

If the person 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 person into removal proceedings under INA 240 with a Notice to Appear, unless he or she is otherwise in a lawful status or in a period of stay authorized by the secretary.[9]

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

Footnotes


[^ 1] See 8 CFR 246.1.

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

[^ 3] For example, if the noncitizen had already obtained a permanent labor certification, and a visa number was available to the noncitizen, but the noncitizen 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 noncitizen 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 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, 599.37 KB), PM-602-0050.1, issued June 28, 2018.

[^ 10] See 8 CFR 246.9.

Current as of July 26, 2021