The Right to Change the Way the Immigration and Nationality Act is Governed

We the undersigned are gathering together for the following purpose ........ For many years there have been innocent people just trying to make decisions for their own life and the happiness they want with a chosen person %u2013 the above opening statement is made up of my words and my experiences, but is also spoken for those who are undergoing the same grueling processes in the Right to choose and marry a person from another country.  The Immigration and Nationality Act of the United States of America is far overdue for a major overhaul and a brand new set of rules and procedures.  Not only do I believe the family based part of this Act should be overhauled, but the entire Immigration Rules and Procedures.  We are a nation that is made up of immigrants from all over the world and we have become a strong Nation because of this.  Our nation has the complete diversity of all nations set in this world %u2013 all languages %u2013 all religions %u2013 we became a nation with rights of freedom to speak, work, grow businesses and the right to think and feel what is inside our own souls and dreams for life and future of ourselves and our families. I do not believe in illegal immigration %u2013 I do not believe in sham marriages %u2013 I believe in the right for the people to make choices for their own life %u2013 their own future and doing it by the rules and regulations governed and wrote by the United States of America. However, when others begin to do things against those rules and regulations and not follow the guidelines set thereto, then we have a serious problem that needs changed, revamped and fixed permanently.  In processes somewhere in this issue, there have become too many different agencies involved that have made this process not only an expensive venture, but a very complicated one for most.   This is a following list of agencies that you must go through merely to find information, let alone documents and filing of petitions; United States Citizenship and Immigration Services (USCIS), National VISA Center (NVC), Department of Homeland Security (DHS), Department of State (DOS), along with your local immigration offices and the overseas consulates/embassy%u2019s.  There is not one single grouped together package for people trying to do just one service, i.e., file for a K-1 VISA ( fiancée VISA), K-3, K-4, CR1, LR1 ( family based VISA for children, spouses or other family members), all the different work VISA%u2019s and tourist VISA%u2019s %u2013 the list goes on. As you can see, there are way too many agencies involved here and when you get to many things in the circle of steps to follow %u2013 you begin to encounter severe problems.  No one in this circle knows who to go to %u2013 who to contact %u2013 who to refer you to, nothing %u2013 you merely get all kinds of people, employees and civilians trying to file or get questions asked or help of any kind, continually wandering around in this maze of circles.  When this happens there is no organization anymore, no control, and no fundamentals of understanding on how to govern the laws of immigration %u2013 so begins, the Chaos in its most extreme forms.  Next you will find a list of possible changes in the way immigration interviews are conducted overseas, as well as ideas for revamping the application procedures.  This system is flawed; help me to make a stand to once and for all reform the Acts of Immigration Policies and Procedures governed by the United States of America. 

1)      All applications should be located in one place and complete packets should be made from start to finish containing all items needed for that certain VISA.  (i.e., K-1 packet, CR1 packet, etc.) 
2)     One agency involved to oversee the entire process, whether it be the USCIS, DHS or DOS %u2013 you have to have one agency in control of the system %u2013 to many and the pot boils over.  Yes, you will continue to have employees handling different things in the process; you will have the NVC doing the security and background clearances, but only one Specific agency should be in control to have all of the document packets, to have all of the complaint departments to refer people to the right individual, to answer questions, to handle privacy waiver forms (and these forms should be available to be done online, not just by postal mail %u2013 with a perjury statement and another form of presenting identification that this person is you).   
3)     When persons make the choice to take on a venture to marry a person from another country, then that person must be prepared to undergo a joint interview overseas %u2013 if this is a financial burden for any reason then another way of joint interview should be put into place.  It is impossible to have one person enter an interview for 10 minutes or so, and expect any human being to know whether or not that individual is telling the truth. 
4)     There should be one complete list of documents required for the application process %u2013 i.e., Birth Certificate, Marriage Certificate (if already married), Police and Court Certificates, Passports, a complete list of all supporting documents (pictures; e-mails; letters; phone bills; plane tickets; receipts of all purchased items and entertainment or travel things done together; receipts for documents purchased, etc.).  This should be the same for all countries, after all, all of these people are trying to enter the same country %u2013 the United States of America, therefore one document used for all. 
5)     There should be clear and concise rules and procedures for the overseas Consulate Officers to follow in this interview process.  Change the questions, fine, but the process must be the same.   If during the application approval the person should have questions or see issues within the petion, then they should be the first person to determine, are there questions in this application? %u2013 Those should be forwarded to the overseas consulate with the petition.  Next, there are the security checks and clearance %u2013 approved - send on to the consulate %u2013 there the petition is assigned to a Consulate Officer %u2013 that person is responsible for thoroughly reading the petition and looking at all supporting documentation.  They then make a list of the questions they want answered and they send out the packet with interview date and the request for all other supporting documents of there choice according to each petition; maybe the person did not send in enough photos, maybe the Consulate Officer would like them to bring with them supporting letters from friends or family members, etc. 
6)     One main switchboard phone number, one main e-mail contact address, one group to oversee all incoming correspondence, complaints and/or questions. 

This is merely a few suggestions in minor form %u2013 obviously they would be perfected in all legal manners to read accordingly and left with no loopholes.  I am continuing a very lengthy list of changes and possible suggestions to make this process run smoother for all people involved.   You will find below an actual correspondence sent to the Overseas Consulate in this country %u2013 this correspondence was sent nearly three weeks after the said interview after repeated tries to speak with someone and getting no response.  In reply, you will also see a response from this office where the written report of the interview was finally revealed.  Let me explain that the reason it took so long was probably due to the fact that the report was fabricated with lies and reasons that were not possible to be true, but they were taken out of context from something that was said in the interview.  Also, there was no interpreter provided in this particular interview.  Further explanation and proof will be listed below after the two correspondences. 

THE CORRESPONDENCE:
8 April 2007 TO:     Ambassador Thomas T. Riley %u2013 Rabat, Morocco            Consular General Douglas C. Greene %u2013 Casablanca, Morocco            Consular Officer Matthew McKeever %u2013 Casablanca, Morocco Embassy of the United States of America
2 Avenue de Mohamed El Fassi
Rabat, MoroccoConsulate General of the United States of America
8 Boulevard Moulay Youssef
Casablanca, Morocco  Dear Ambassador Thomas Riley; Consular General Douglas Greene; and Consular Officer Matthew McKeever, I am writing this letter in hopes that you will listen to my plight of issues regarding the VISA Immigration rights governed in the Immigration and Nationality Act and also, the laws of policies and procedures that govern the Consulates abroad and how they conduct their business of interviews for the beneficiary trying to enter the USA to join his spouse.  Let me explain our situation and also inform you that I have been living in Kenitra, Morocco side by side with my husband for almost seven months now. My husband and I were married July 7, 2006 in Morocco according to all laws of this country.  I stayed here for two and one-half months and then returned to the states on August 15, 2006 to finish the filing of our papers and to obtain my exit stamp on my passport, as required by the US Immigration rules.  I returned back to Morocco on November 21, 2006 and have been residing here ever since that day.   During all this time we continued to do the things we were asked and obtain all the documents requested on the paper sent to us by the Casablanca Consulate %u2013 mind you, we only had two weeks to prepare for our interview.    We had hired a lawyer in the states to make sure that all papers were filed correctly, including a selection of the five pictures that were requested.  I also made many photocopies of other photos out of the over 600 we have to choose from.  Our petition was approved in the states through the California Service Center and then forwarded on to the National VISA Center for background checks and security clearance.  It was also approved and then sent to the Casablanca Consulate.  They received it and then sent us a notice of interview date and time along with a packet of papers.   My husband and I proceeded to do all of the steps that were needed for the interview, fill out the forms required, obtaining birth and police certificates, marriage certificate, passport, and medical examination with all x-rays, blood work and immunizations.  We were also asked to provide further proof of our continuing relationship; i.e.; letters, e-mails, phone records, etc.  These items were not available because we have been living together as husband and wife.   We are however, prepared to offer any information that the Consulate wants to prove our case, but were not even given a chance to do so.  My husband tried to show other items, like my passport, plane tickets, etc., but the consulate officer just said it was impossible for us to have a relationship because my husband made a choice to speak partly in Arabic because he did not want to make any mistakes in his interview.  There are a great many other details to this interview and the things that took place in it and I would be more than willing to share those with you given the chance to do so. I have repeatedly tried many times to talk to the Consulate and request the exact reasons for denial because all they handed my husband was a 221(g) form with nothing really on it to explain anything %u2013 other than it was being sent back for review.  These contacts were made from the day of interview -   and continued daily for two weeks.  I requested to speak to a Senior Consulate Officer %u2013 I requested to be given a chance to merely speak to someone to try and have every opportunity to fix whatever the issue was.  I was told solid for two weeks that they could not do that because our papers were returned to the states for further review.  The papers however, were still in the consulate and had not left there.  I also am aware that hard copies of all petitions must be kept in the possession of the interviewing consulate office.  Our interview date was March 21, 2006 at 8:00 am %u2013 my contacts began the same day. I was told on March 23, 2006 that our file will be returned and given the reg. pouch number %u2013 I, again was told on March 28, 2006 that the papers were sent back to the USCIS office and that I would need to contact them for further assistance %u2013 again I sent another letter asking for confirmation date of when they were returned %u2013 I finally, again received a reply on April 5, 2006 and was told that the papers were sent out on April 4, 2006 %u2013 the day before the message %u2013 as you can see I was told on three different occasions that the papers were returned, however I am sure you can see the date of supposed confirmation of departure of the papers. My husband and I did not sleep the night before our interview and traveled by train to get to the interview %u2013 we arrived in Casablanca at 5:00 am in the morning and waited until about 7:20 am at a café attached to the embassy and then proceeded to go stand and wait in line for the opportunity to go in and hopefully get everything finalized and start making plans to build our future in the USA with my children.  The officer/security person would not allow me in to the embassy and I was sent away %u2013 I had to go wait alone in the café nearby, all the time being a little worried because I was a woman alone and I have already dealt with previous issues and treatment from some citizens here, but the events that also just took place in Casablanca made me very nervous and I know my husbands mind was going crazy at that point.  This obviously was not going to help him speak to the woman in perfect English.  There were a lot of outlying factors to start out this interview, but my husband of course still went in and did what he was being required to do.  He was disrespected greatly in many forms and I have been lied to repeatedly from this consulate and not given the right to speak to a Senior Officer. We are merely trying to get some response to our plight in this matter and be given every opportunity to give whatever proof the consulate wants for our relationship.  I feel that the rules and policies that regulate this process were not followed and that we were never given a chance to answer or prove anything %u2013 although, I would have thought me actually living here with my husband would have shown great proof.  We are now under great financial strain from this situation and I have three children in the states (our relationship is being severely affected by this matter) and I also have a mother and step-father that are ailing in health %u2013 to say the least I am the only family any of these people have.  Mt step-father is currently scheduled to go through surgery on his lung %u2013 right side %u2013 and will need a lot of help in this %u2013 my mother is older and not in great health herself to be undertaking such care.   We are not asking for preferential treatment in this matter %u2013 merely the right to be given every opportunity at the consulate to fix the situation at hand.  I will reiterate the fact that this was not given and all of the details of said interview can be given if asked.  Right now I have a CD in my possession that will show you over 600 photos and two VCD%u2019s containing our marriage ceremony and the traditional henna ceremony.  I have letters from my children and my parents of our relationship.  I have a paper that is notarized and stamped by the Consulate of my current address in Kenitra, Morocco and papers filed with foreign affairs at the local police station of obtaining a residence permit here.  I am prepared to give any and all information you need of us.  I have stored on our computer many conversations we have had and I am prepared to print those up for your review.  Back in the states I have a multitude of conversations that took place on a daily basis for anywhere from 6 to sometimes 13 hours a day.  Please understand this is not a game for us %u2013 all we are trying to do is begin a peaceful life together and build a marriage and a future.  Because I have children and parents that are ailing in health, we made the choice to do that in the USA.  However, please understand I will not leave my husband and we will continue to live together here for as long it takes to prove our case. I am asking for your assistance in this very urgent matter %u2013 I feel I have tried all other avenues of communication and feel that this is our only chance to find and speak with someone who is responsible for making sure that rules, laws and procedures are followed by every means necessary.  I will send this letter to all three of you by e-mail, but please be assured it is also being sent by postal mail to make sure it is received by you specifically.  I will wait for a reply from you and would even request the opportunity to have an infopass appointment to discuss this matter further.  We are prepared to travel back to Casablanca or Rabat, whichever is necessary.  My resources are limited in trying to call the United States Offices in question, so therefore, you are my choice of contact.  However, yes I have made contacts to all offices in the States.  Our lawyer also tried to contact the Consulate here in Casablanca and has gone unanswered as well. Sincerely, (names and personal information of the individual is deleted for privacy reasons.  The names of Consulate individuals is not deleted, as they are public knowledge.) 

THE REPLY:
From: IV, Casablanca (IVCasablanca@state.gov) Add contact Sent:Tue 4/10/07 10:38 AMTo: Name deleted Dear Ms (name deleted)         This is in response to your recent e-mail message to Ambassador Riley and Consul General Greene regarding the Immigrant Visa case of your husband, Mr. (name deleted).          The record indicates that, despite the assistance of an English-, French- and Arabic-speaking interpretor during the interview, Mr. (name deleted) could provide very few details about is his relationship with you other than your name, occupation, number of children, and birthday.   When asked how you met and communicate, he could not specify the website via which you initally made contact, simply saying that it was shown to him by a friend.  He also said that he largely relies on friends not only to handle written e-mail communication with you while you were in the U.S., but also for verbal communication when you're in Morocco.              Mr. (name deleted) was given numerous opportunities during the interview to provide information in his native language about you and your relationship, but was only able to provide the bare minimum cited above.  Therefore, the Consular Officer returned the file including the original I-130 petition (which is standard procedure in such cases) to the Department of Homeland Security's United States Citizenship and Immigration Service (USCIS) via the National Visa Center for a further review of the of the relationship.  Unfortunately, this office has no authority over the case at this time and to seek information about its status, you need to contact the USCIS National Customer Service Center at 1-800-375-5283.         I trust you find this information helpful.  Sincerely, Matthew McKeeverConsular Section Chief U.S. Consulate GeneralCasablanca, Morocco kcmm  

Consulate Officers are taking context from interviews and putting in their own plays on words that were never spoken.  In this particular case, the Consulate Officer asked the following question, %u201CHow did you learn English?%u201D %u2013 The response given in the interview was, %u201CI learned with help from friends.%u201D  From this the Consulate Officer made her report to the effect that all communication between husband and wife was translated by friends.  Hard to believe that a husband and wife would live together and have friends translating for them 24/7 %u2013 a mere impossibility.  If you would like further details of this one case, please feel free to ask in a corresponding e-mail.  The next things attached are the actual Cable Wires sent to all US Consulates overseas.  These procedures are not followed by any means and therefore, the person doing the interview has to come up with fabrications because they want to say no.  This information is taken off of the following website after doing a google search for information on procedures involving Refusals of K-3 VISA's: 

http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html#

1.)  RETURNING DHS / BCISR 251642Z FEB 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KHARTOUM
AMEMBASSY KABUL
AMEMBASSY BUJUMBURA UNCLAS STATE 041682

VISAS - INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: SOP 61: GUIDELINES AND CHANGES FOR RETURNING DHS / USCIS
APPROVED IV AND NIV PETITIONS
1. Summary. Effective immediately, all immigrant, K-1 and K-3
visa petitions being returned with a recommendation to the DHS
Bureau of Citizenship and Immigration Services (USCIS) for
revocation will be forwarded to the National Visa Center (NVC).
This cable provides guidance to posts on proper processing of
DHS petitions submitted in support of immigrant or nonimmigrant
visa applications. It cites and provides supplemental material
to already existing FAM procedural instructions. End Summary
2. Effective immediately, posts should forward all immigrant and
K-1/K-3 visa petitions being returned to the USCIS with a
recommendation for revocation to the NVC. The NVC has developed
a system for tracking all immigrant and K-1/K-3 visa petition
cases returned from posts with recommendations for revocation.
There are two reasons for the change in procedure. First, many
petitions returned to USCIS with recommendations for revocation
have been lost. In other cases, post has not received any
information from USCIS on the status of the revocation request.
The NVC will track all cases returned to USCIS and ensure that
the cases are sent to and received from USCIS in a timely manner.
Second, the NVC Fraud Prevention Unit intends to utilize the
data obtained from revocations to track trends for future
intelligence dissemination.
3. Revocation cases will be forwarded to the NVC for review and
data collection, and forwarded by NVC to the appropriate USCIS
Service Center. Cases will be returned from the USCIS Service
Center to the NVC and then routed back to the post of origin.
The NVC will follow up on cases lacking information from USCIS in
a designated timeframe. Please note that conforming changes will
be made in the relevant section of 9 FAM 42.43, N2, "When to
Return Petitions," N3 "Returning Petitions" and PN1 "Returning
Petitions for Possible Revocation" and 9 FAM 41.81 N6.6
"Additional Factors That May Raise Questions in K-1 Cases."
Nonimmigrant visa petitions other than K-1/K-3 petitions
returned with a recommendation for revocation will continue to
be sent to the appropriate USCIS Service Center.
4. All Immigrant and K-1/K-3 Visa Revocation cases are to be
returned to the following address:
National Visa Center
32 Rochester Ave.
Portsmouth NH 03801
Attn: Fraud Prevention Manager
5. Unlike consular determinations regarding visa eligibility,
which are not subject to judicial review, actions relating to
DHS petitions are potentially subject to administrative and/or
judicial review. The Department is regularly named as a co-
defendant with DHS in cases involving the return of immigrant or
nonimmigrant petitions to DHS. Therefore, it is particularly
important that consular petition adjudications are well
documented and clearly state the basis for the petition return.
6. In adjudicating visa cases involving petitions, posts should
bear in mind three important factors: A. the consular officer''s
role in the petition process is to determine if there is
substantial evidence relevant to petition validity not
previously considered by DHS, and not to merely readjudicate the
petition; B. the memo supporting the petition return must
clearly show the factual and concrete reasons for recommending
revocation (observations made by the consular officer cannot be
conclusive, speculative, equivocal or irrelevant) and; C.
consular officers must provide to the applicant in writing as
full an explanation as possible of the legal and factual basis
for the visa denial and petition return. Post must maintain a
copy of the returned petition, other evidence relevant to the
case, and a copy of the written notification of the denial.
No readjudication of petitions
7. In general, an approved petition will be considered by
consular officers as prima facie evidence that the requirements
for classification - which are examined in the petition process
- have been met. Where Congress has placed responsibility and
authority with DHS to determine whether the requirements for
status which are examined in the petition process have been met,
consular officers do not have the authority to question the
approval of petitions without specific evidence, generally
unavailable to DHS at the time of petition approval, that the
beneficiary may not be entitled to status (see 9 FAM 41.53, Note
2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6,
and 42.43 Note 2) due to fraud, changes in circumstances or
clear error on the part of DHS in approving the petition.
Conoffs should not assume that a petition should be revoked
simply because they would have reached a different decision if
adjudicating the petition.
8. When a petition is returned to DHS, if DHS concurs with the
officer''s recommendation, DHS regulations require DHS/USCIS to
provide the petitioner notice of intent to revoke, and to allow
the petitioner an opportunity to rebut the grounds for
revocation. DHS regulations require that, in the case of
nonimmigrant petitions, the revocation must be based only on
grounds specified in the regulations. Those grounds include
evidence that the statement of facts in the petition was not
true and correct, or that the approval involved gross error.
The FAM often only summarizes the petition approval criteria
because they are too lengthy and complicated to reproduce fully
(the H regulations, for example, contain about 25 pages of
double column material). Absent access to the full DHS
regulations, conoffs may not be aware of all of the factors
considered by DHS in approving a petition. In addition, conoffs
are normally less knowledgeable about the basis for petition
eligibility than DHS personnel; they therefore should not jump
to conclusions regarding petitions. In addition, conoffs should
return petitions only where there is specific, material and
clear evidence to provide the DHS a basis to initiate petition
revocation procedures.
Sufficiency of evidence
9. 9 FAM ''42.43, Procedural Note One states that when returning
petitions for possible revocation, "The original petition, along
with all supporting documents, shall be returned under cover of
a Form DS-3096, Consular Return/Case Transfer Cover Sheet, and a
memorandum supporting the recommendation for revocation. The
report must be comprehensive, clearly showing factual and
concrete reasons for revocation. The report must be well
reasoned and analytical rather than conclusory. Observations
made by the consular officer cannot be conclusive, speculative,
equivocal or irrelevant." The criteria cited in this note
derive from the Board of Immigration Appeals case, Matter of
Arias, in which the Board determined that the memorandum
supporting a petition return did not constitute "good and
sufficient cause" for petition revocation, because it consisted
of "observations of the consular officer that are conclusory,
speculative, equivocal, or irrelevant to the bona fides of the
claimed relationship".
10. Memoranda supporting petition returns should be scrutinized
carefully and objectively, bearing in mind that they may become
relevant in litigation. The memoranda should be based on
specific factual evidence, rather than conclusions, and should
be clearly reasoned. For example, a statement that unnamed
neighbors told a fraud investigator that a couple was not
married is likely to be viewed as of relatively little value
compared to a statement that names the neighbors, explains the
nature of their relationship to and knowledge of the couple, and
sets out the specific facts that led to the conclusion that the
couple was not married. Signed statements are of greater value
than second hand reports. Where a statement is prepared in
English by a non-native English speaker, it should be proofread
carefully. Posts can consult with CA/VO/L/A on cases where
there are questions or concerns over the sufficiency of evidence
cited in the memo supporting a petition return.
Notice to Applicant
11. INA 212(b) requires the conoff in most cases to "provide the
alien with a timely written notice that- (A) states the
determination, and (B) lists the specific provision or
provisions of law under which the alien is inadmissible." 9
FAM 42.81 Procedural Note one instructs the conoff to provide:
"1) The provision(s) of law on which the refusal is based; (2)
The factual basis for the refusal (unless such information is
classified); (3) Any missing documents or other evidence
required; (4) What procedural steps must be taken by the
consular officer or Department; and (5) Any relief available to
overcome the refusal."
12. There are legitimate reasons why in some cases a conoff
should not release all information relating to a visa refusal;
such reasons could include classification of the information,
confidentiality concerns, the need to protect an informant, or
the "third agency rule" (information from another agency should
only be released with that agency''s permission). However,
absent such considerations, conoffs should provide the applicant
with the full factual basis for a visa refusal, as well as a
reasonable opportunity to overcome the finding. This is
particularly important to ensure that the Department''s interests
are protected in any subsequent litigation. It is important
that conoffs maintain a record at Post showing that Post
provided a written notice of the legal ground for refusal to the
applicant, and, if possible, the factual basis for the refusal
(this will normally consist of a copy of the OF-194). Conoffs
are also reminded that in accordance with 9 FAM 42.81 Procedural
Note 9, and 41.53 Note 2.3, copies of returned petitions and all
other relevant material must be retained at Post.
Additional Considerations
13. Post''s requests for petition revocation are often based upon
investigation results. Consular managers should ensure that
their fraud prevention programs actively tie investigations to
legally-pertinent factual questions, and that they are likely to
produce concrete evidence. In other words, if an investigation
that confirms conoff''s suspicions will not serve to allow DHS to
revoke the petition, post is not managing its investigations
effectively. Posts can find useful guidance on managing
investigations and other aspects of fraud prevention at CA/FPP''s
intranet site at http://intranet.ca.state.gov/fpp/fpphome.htm.
In accordance with the guidance in 9 FAM 40.63 Note 10.1, where
there is evidence that the petition was approved based on fraud,
the fraud cannot be considered to be material until the petition
is revoked, and therefore while post can enter such cases into
CLASS as P6CI, post should not pursue a 6C finding until the
petition is revoked or abandoned. As stated in 9 FAM 40.4 note
10.1, post should be aware that any evidence presented to DHS in
support of a petition revocation may be passed to the petitioner
as part of the petition revocation procedures. Finally, Posts
should review 9 FAM 40.51 Note 10 on the handling of petitions
where there is evidence that a labor certification was obtained
by fraud or material misrepresentation.2.)  GUIDANCE ON PETITION REVOCATIONS  R 130616Z JUL 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
UNCLAS STATE 121801
 
E.O. 12958: N/A
TAGS: CVIS, CMGT, KFRD
SUBJECT: GUIDANCE ON PETITION REVOCATIONS
 
REF: AIRGRAM M-240
1. SUMMARY: From time to time, most posts have occasion to return IV and petition-based NIV petitions to the approving USCIS service centers to request reconsideration and revocation. Posts should be judicious about returning petitions, since the revocation process is lengthy and the evidentiary standard that must be met to sustain a petition revocation is relatively high. Posts should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation, or ineligibility for status is only suspected but cannot be clearly established. When posts have determined that a petition merits a revocation request, the case should be returned to the approving service center quickly to avoid lengthy delays in processing. To help posts with this process, CA/VO/F/P and CA/FPP are currently working with USCIS to develop a standard petition return memo and guidelines for writing effective revocation memos. END SUMMARY.
Be judicious in returning petitions
------------------------------------------------------
2. Several months ago, CA/VO/F/P conducted an informal survey of posts'' petition revocation processes to determine post practices and needs in regard to revocation requests. We learned that, for the most part, posts return relatively few petitions to USCIS for revocation. This is a positive practice from our perspective, since as a general rule petitions should only be returned to USCIS when fraud or misrepresentation or ineligibility for status can be clearly established or when the petition merits automatic revocation because of such circumstances as the death of the petitioner.
3. 9 FAM 42.43 provides general guidance on preparation of memos to USCIS requesting revocation of IV petitions. Separate sections in 9 FAM 41 on petition-based NIV categories (H, K, L, O, P) provide similar guidance on when to return those petitions. In all cases the guidance Amphasizes that USCIS approval of a petition is prima facie evidence of the applicant''s entitlement to visa status, and that consular officers should not attempt to readjudicate petitions. Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to USCIS at the time of petition approval. The FAM cautions that posts should seek revocations "sparingly," to avoid inconveniencing the petitioners and applicants and to avoid creating an additional administrative burden for USCIS.
4. Providing solid evidence of fraud or misrepresentation in a petition relationship may not be achievable in many cases, particularly those involving marriage or relationship fraud. The FAM guidance on revocations makes this point on several occasions -- posts seeking revocations must show the "factual and concrete reasons for revocation." USCIS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law. In the case of sham marriages, for example, 9 FAM 42.43 N2.2 notes that USCIS requires at the least either documentary evidence that money changed hands between the petitioner and beneficiary or factual evidence that would convince "a reasonable person" that the marriage was entered into solely to evade immigration laws. Without such evidence, USCIS will be unlikely to obtain a petition''s revocation if a petitioner chooses to contest a notice of intent to revoke.
No "deep sixing"
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5. Posts should not return petitions to USCIS based on mere suspicion or as a substitute for making a decision at post. If the evidence of fraud, misrepresentation, or ineligibility for status is strong enough to lead to a likely revocation, returning the petition would be warranted. However, if post believes the evidence is not likely to lead to a revocation and returning the petition would be a wasted exercise, the petition should not be returned. Returning cases that are only suspect or that appear too complex to figure out is not appropriate and only increases USCIS'' administrative burden and prevents the applicants and petitioners in these cases from obtaining the timely decision on their petitions to which they are entitled.
Use 221(g) with IV cases
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6. Please keep in mind the differences between revocation of the petition and denial of the visa application. In the absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa, assuming the alien is otherwise qualified, or if further investigation is warranted and holds a potential for resolving post''s concerns, use a 221(g) refusal to obtain additional information. Posts should be generous in allowing applicants every opportunity to supplement their applications following a 221(g) refusal. Many consular sections polled by VO reported that they usually use 221(g) rather than petition return to USCIS as the most effective way of handling cases in which fraud is suspected and where further Information-gathering is likely to be able to resolve the doubts one way or the other.
7. VO supports this use of 221(g) with IV petitions, as returning a petition based on suspicion alone is not appropriate, and providing the applicant an opportunity to address post''s doubts is a fairer way of dealing with suspect cases. We encourage posts to use 221(g), except in those IV cases in which fraud, misrepresentation, or ineligibility for status can be clearly established. 221(g) allows petitioners and beneficiaries to supplement the initial application and in many cases overcome the refusal. Per 22 CFR (9 FAM) 42.83(b), if an applicant fails to present evidence purporting to overcome the basis for the 221(g) refusal within one year of the refusal, post can initiate 203(g) termination procedures (9 FAM 42.83 N1.2).
8. 221(g) may also be appropriate for NIV petition cases. However, posts should note that there is no 203(g) termination process for NIV cases. If post obtains information not known to USCIS at time of petition approval which indicates that an applicant is not eligible for the visa category covered by the petition, the petition should be returned to the approving service center in accordance with FAM guidelines pertaining to the relevant visa category.
Don''t sit on cases
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9. Once post has decided that a case warrants return to USCIS, the memo requesting revocation should be prepared expeditiously and the case returned as quickly as possible. Keeping a case for a lengthy period because officers do not have time to prepare the revocation memo is not fair to the applicant or petitioner, only invites more work in the long run in the form of congressional inquiries and calls about the case, and can even lead to litigation. It places an unfair burden on the petitioner and beneficiary, who in many cases would choose to contest the revocation but cannot do so until USCIS has received the file and sent a notice of intent to revoke to the petitioner. As a rule of thumb, posts should not allow petitions earmarked for return to USCIS to languish more than a week or two. Our e-mail poll revealed that by-and-large posts are aware of this need for quick processing and are preparing revocation memos with dispatch.
Working with USCIS to develop revocation memo guidelines
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10. CA/VO/F/P and CA/FPP are currently working with USCIS to develop a consular return cover worksheet which posts will be able to use in returning petitions meriting revocation to the approving service centers. We are also developing guidelines which posts can use in preparing effective revocation memos that will satisfy USCIS'' evidentiary requirements and thus most likely lead to a successful guidelines which posts can use in preparing effective revocation memos that will satisfy USCIS'' evidentiary requirements and thus most likely lead to a successful revocation. We hope to be able to post this guidance on the Intranet later this summer.
11. Minimize considered.
POWELL 

You may further research this subject if you wish before signing, but I have tried to provide you with plenty of information to make a decision on this matter.  It is time for this Act in our US Government to be reformed %u2013 you hear government officials consistently talking about this subject of reform, but never quite getting it done.  Please join me in this plight and help us make a stand of a strong nation who believes in everything this country stands for %u2013 FREEDOM OF CHOICE AND THE RIGHT TO MAKE THOSE CHOICES.

Take the time to go to visajourney.com and do some of your own research and maybe even read a few stories from people who are struggling.