Visa Revocations

 

Introduction to Visa Revocations

visa revocationsThe Department of State (DOS) has the authority to revoke a nonimmigrant visa or an immigrant visa at any time while the visa holder is outside of the United States. The DOS's authority derives from statute and is developed in both DOS regulations and the DOS Foreign Affairs Manual (FAM) for consular officers. Additionally, DOS may provisionally revoke a visa while it considers information relating to whether the visa-holder is eligible for the visa. If a visa is revoked, it will be cancelled by DOS. In this article, we will look at the applicable statutes, regulations, and agency guidance to explain visa revocations.

Statutory Background

The statutory authority for visa and immigration documentation revocations is found in section 221(i) of the Immigration and Nationality Act.

Revocation Authority

Section 221(i) grants the discretionary authority to a consular officer or the Secretary of State to revoke a visa or other immigration documentation after its issuance. A visa revocation will have the effect of invalidating the visa from the date of its issuance.

Limited Judicial Review

Section 221(i) explicitly states that there shall be no means of judicial review or habeas corpus petition from the discretionary decision to revoke a visa under section 221(i) or any other habeas corpus provision. However, if an alien in the United States is placed in removal proceedings under section 237(a)(1)(B) solely based upon the revocation of his or her visa or documentation, the alien is entitled to judicial review.

Section 273 Exception

Finally, section 221(i) provides that “carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 273(b) of the [INA] for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien's embarkation.”

In short, section 273(b) of the INA does not apply to persons or entities listed in the provision who transport an alien into the United States whose visa or documentation has been revoked unless the persons or entities received actual notice before the alien's embarkation.

Visa Revocation Rules and Procedures

Section 221(i) is implemented through Department of State (DOS) regulations. There are separate regulations for nonimmigrant and immigrant visas. Additionally, the Foreign Affairs Manual (FAM) provides guidance to consular officers in implementing section 221(i). We will use these resources combined with limited case-law to examine visa revocation procedures for both nonimmigrant and immigrant visas.

Nonimmigrant Visas

The regulatory provisions for the revocation of nonimmigrant visas are found in 22 C.F.R. 41.122.

22 C.F.R. 41.122(a) provides that a consular officer, the Secretary of State, or a DOS official to whom the Secretary of State has delegated authority is authorized to revoke a nonimmigrant visa at any time, in his or her discretion. Prior to 2011, consular officers only had the authority to revoke visas for reasons listed in the regulations [see 76 FR 23477-01 (Apr. 27, 2011)]. However, the regulations were updated to give consular officers the full discretionary authority as allocated to the Attorney General in section 221(i) of the INA to revoke a visa. In other words, the visa remains revoked unless the visa is reinstated.

22 C.F.R. 41.122(b) provides the authority to provisionally revoke a nonimmigrant visa. A visa may be provisionally revoked in order for DOS to consider information related to the visa holder's eligibility for the visa. The regulation explicitly states that a provisional revocation “shall have the same force and effect as any other visa revocation under [section] 221(i).”

Under 22 C.F.R. 41.222(c), consular officers are required, unless otherwise instructed by DOS, to notify an alien (if practicable) when his or her visa is revoked or provisionally revoked. However, once the visa revocation is entered into the DOS's Consular Lookout and Support System (CLASS), the visa is rendered invalid regardless of whether notification was provided. The date of the visa revocation will be sent to the alien.

Under 22 C.F.R. 41.122(d), a consular officer will physically cancel a revoked nonimmigrant visa by writing or stamping “REVOKED” on the face of the visa if the visa is available to the consular officer. However, because the visa is revoked when it is entered into the CLASS system, the validity of the revocation is not affected by the ability of DOS to physically cancel it.

Grounds for Revocation

The Department of Homeland Security (DHS) may physically revoke a visa as described under 22 C.F.R. 41.122(d) under the following circumstances (listed in 22 C.F.R. 41.122(e)):

  1. The alien obtains an immigrant visa or an adjustment of status to that of permanent resident;
  2. The alien is ordered excluded from the United States under INA 236, as in effect prior to April 1, 1997, or removed from the United States pursuant to INA 235;
  3. The alien is notified pursuant to INA 235 by an immigration officer at a port of entry that the alien appears to be inadmissible to the United States, and the alien requests and is granted permission to withdraw the application for admission;
  4. A final order of deportation or removal or a final order granting voluntary departure with an alternate order of deportation or removal is entered against the alien;
  5. The alien has been permitted by DHS to depart voluntarily from the United States;
  6. DHS has revoked a waiver of inadmissibility granted pursuant to INA 212(d)(3)(A) in relation to the visa that was issued to the alien;
  7. The visa is presented in connection with an application for admission to the United States by a person other than the alien to whom the visa was issued;
  8. The visa has been physically removed from the passport in which it was issued; or
  9. The visa has been issued in a combined Mexican or Canadian B-1/B-2 visa and border crossing identification card, and the immigration officer makes the determination specified in [22 C.F.R.] 41.32(c) with respect to the alien's Mexican citizenship and/or residence or the determination specified in [22 C.F.R.] 41.33(b) with respect to the alien's status as a permanent resident of Canada.

Guidance in the Foreign Affairs Manual

Since the DOS revised 9 FAM in 2015, DOS has not yet made public much of the new guidance in 9 FAM regarding the revocation of nonimmigrant visas [see post on new 9 FAM]. However, the guidance in the previous version of 9 FAM regarding the current 22 C.F.R. 41.122 is still available. It is important to note however that some or all of the guidance in the old 9 FAM may have changed with the overhaul of 9 FAM.

9 FAM 41.122 N1 listed four situations in which consular officers must revoke nonimmigrant visas:

  1. Alien is ineligible under section 212(a) to receive such a visa, or the visa was issued in contravention of section 222(g) [see article];
  2. Alien is not entitled to nonimmigrant visa classification under section 101(a)(15) [defines nonimmigrants];
  3. The visa has been physically removed from the passport in which it was issued; or
  4. The alien has been issued an immigrant visa.

9 FAM 41.122 N2 instructed consular officers to not use their discretionary authority to revoke nonimmigrant visas arbitrarily.

9 FAM 41.122 N3 instructed consular officers that “[u]nder no circumstances should you revoke the visa of an alien believed to be physically in the United States, or to have commenced an uninterrupted journey to the United States.”

Ninth Circuit Precedent on Review

In Wong v. Department of State, 789 F.2d 1380 (9th Cir. 1986) [PDF version], the Ninth Circuit held that the revocation of L2 visas was invalid where it was based on the visas having been improperly issued because the L2 beneficiaries were not physically present at the embassy. The court held that, under the regulations regarding visa revocations that existed at the time, the consular officer did not have the regulatory authority to revoke a visa based on procedural requirements in the application process. Rather, the Ninth Circuit held that a visa revocation must be based upon the visa holder's ineligibility to hold the visa under grounds listed in the regulations.

However, in Noh v. INS, 248 F.3d 938, (9th Cir. 2001) [PDF version], the Ninth Circuit declined to extend its holding in Wong to a situation where a DOS officer to whom the Secretary of State delegated his authority revoked a nonimmigrant visa on grounds not set forth in the regulations. The Ninth Circuit did not extend Wong because the Secretary of State's authority for revoking a nonimmigrant visa derives from section 221(i) of the INA, which is not bound by 22 C.F.R. 41.122. Accordingly, the Ninth Circuit held that the limitations set forth in the regulations apply to consular officers but not to the Secretary of State. Rather, in determining whether the revocation by the Secretary of State is valid, the Ninth Circuit assesses whether a “facially legitimate and bona fide” reason was provided. Because the DOS official provided a facially legitimate and bona fide reason for the revocation, the Ninth Circuit found that the decision was unreviewable.

However, as we discussed in the previous section, consular officers may now exercise far greater discretion in the decision to revoke a visa, thereby making the distinction between Wong and Noh less relevant under the current regulatory scheme.

Immigrant Visas

The regulatory provisions for the revocation of nonimmigrant visas are found in 22 C.F.R. 42.82. The regulations mostly mirror the provisions for the revocation of nonimmigrant visas, sans the section on situations in which DHS officers may revoke a visa.

22 C.F.R. 42.82(a) gives consular officers, the Secretary of State, or any DOS official to whom the Secretary of state has delegated his or her authority the full discretionary authority to revoke an immigrant visa at any time. As we discussed in the section on nonimmigrant visas, Prior to 2011, consular officers only had the authority to revoke visas for reasons listed in the regulations [see 76 FR 23477-01 (Apr. 27, 2011)].

22 C.F.R. 42.82(b) provides for the provisional revocation of immigrant visas while a DOS official considers information relating to the visa holder's eligibility for the visa. A provisional revocation will have the “same force and effect as any other visa revocation under [section] 221(i).”

22 C.F.R. 42.82(c) provides that, unless otherwise instructed by DOS, a consular officer shall, if practicable, notify an alien when his or her visa has been either revoked or provisionally revoked. However, once the revocation is entered into CLASS, the visa is considered invalid from that point forward. The validity of the revocation is not connected to notification.

The procedures for physically cancelling an immigrant visa, which are found in 22 C.F.R. 42.82(d), mirror the procedures for cancelling a nonimmigrant visa. If the immigrant visa is available to a consular officer, he or she shall physically cancel it by writing or stamping the word “REVOKED” across the face of the visa. However, the validity of the revocation does not hinge on the physical cancellation of the visa.

Guidance in the Foreign Affairs Manual

9 FAM 504-12-2 lists the scenarios in which consular officers are authorized by DOS rules to revoke an immigrant visa:

  1. The visa was procured by fraud, a willfully false or misleading representation, the willful concealment of a material fact, or other unlawful means;
  2. The alien was otherwise ineligible to receive the particular visa at the time it was issued; or
  3. Subsequent to the issuance of the immigrant visa, a ground of ineligibility has arisen in the alien's case.

9 FAM 504-12-3(A) explains that DOS may not revoke an immigrant visa after the alien has been admitted into the United States by Customs and Border Protection (CBP). If DOS believes that an alien is ineligible for his or her immigrant visa after admission, it must instead forward the relevant information to DHS for consideration.

Review of Visa Revocations

Prior to 2011, there were procedures in place for review of visa revocations. However, the review procedures were stripped from the regulations in 2011 [76 FR 23477-01]. The Federal Register stated: “with the exception of provisional revocations, an applicant whose visa has been revoked must apply for another visa, at which time his or her eligibility for the visa will be adjudicated.” Accordingly, an alien whose visa has been revoked must instead apply for a new visa in order to be admitted to the United States in the same status.

However, 9 FAM 504.12-3(B) instructs consular officers, if practicable, to allow an immigrant visa holder to show at a consular office why his or her visa should not be revoked. 9 FAM 504.12-4 allows for consular officers to consider evidence submitted by an alien to reconsider the decision to revoke an immigrant visa. If the consular officer finds that the evidence is sufficient to overcome the basis for revocation, he or she should issue the alien a new immigrant visa. No fee may be collected with the application or issuance of a reinstated visa.

Under the old 9 FAM 41.122 N2, consular officers were instructed to provide an alien with the opportunity to demonstrate at a consular office why a nonimmigrant visa should not be revoked.

If an alien whose visa was provisionally revoked is subsequently found to be eligible for the visa, his or her visa will be reinstated with no need for reapplication [76 FR 23477-01].

Courts have generally found that 221(i) precludes judicial review of visa revocations. However, the Ninth Circuit in Noh v. INS noted that a situation where a “facially legitimate and bona fide” reason for the revocation was not provided would be reviewable. In view of the post-2011 regulations, this standard would likely also apply to a revocation by a consular officer.

Conclusion: Visa Revocations

Section 221(i) of the INA provides DOS with extensive authority to revoke both nonimmigrant and immigrant visas. Furthermore, a person whose visa was revoked must apply for a new visa to reenter the United States in the same status. If a person is notified of the DOS's intent to revoke or provisionally revoke a visa, or if DOS or DHS revokes a visa, he or she should consult with an experienced immigration attorney immediately. Although the avenues for relief are limited, an experienced immigration attorney will be able to assess the situation and determine whether it is practicable to submit evidence to convince the applicable agency to not revoke the visa, to help the person apply for a new visa, or to seek judicial review in very rare cases.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 849, Print. Treatises & Primers.