Petition Revocations: Potential Conflicts with Employers and Why Denied Visa Applicants Should Consult with their Own Lawyer
Did you go to your employment visa interview and the consular officer told you that the approval of your petition is being revoked? This is not an uncommon story, as more and more H-1B, L-1, O-1, and P-1 petitions are being recommended for revocation every year by consular officers. In general, consular officers must defer to the judgment of USCIS and the grounds for revocation are limited. To recommend revocation of the approval of a petition, the consular officer must have discovered material new facts or misrepresentation or find that the visa applicant does not have the qualifications for the visa. But often times consular officers substitute their own opinion and readjudicate the petition. We are seeing this more frequently, particularly in the context of O visa adjudications, in which the consular officer sets a much higher bar for qualification than USCIS. The stakes are particularly high for those applicants who are being accused of fraud or a material misrepresentation: they may be subject to a permanent bar from the United States.
The problem for visa applicants is that it may take many months for USCIS to take any action on the consular officer’s recommendation to revoke the approval. Eventually, USCIS will either agree with the consular officer and send out a Notice of Intent to Revoke the approval, or reaffirm the approval. But that process may take 6 or more months. In the meanwhile, the visa applicant is stuck overseas – unable to return to the US.
One option that the US employer should consider is filing a new petition for the same visa applicant and address the concerns of the consular officer in that new petition. Usually, one can deduce the problems of the case and the concerns of the consular officer at the time of the visa interview. So it is possible to provide additional or responsive evidence to address those concerns. By submitting the new petition, it is possible to expedite this review process. If the new petition does not address those concerns or do so adequately, then USCIS will issue a Request for Evidence. In any event, the review process will be expedited – and resolution will be forthcoming much quicker.
But what happens if there is a conflict: if your interests are not aligned with your employer in the United States. Perhaps, the employer just wants to move on – and does not want to contest a potential petition revocation. Perhaps the employer found someone else for the job, or doesn’t want to spend the substantial time and expense in challenging a consular officer’s conclusion. The employee, on the other hand, has his/her own interests. If the petition is revoked and the consular officer’s recommendation takes effect, the employee may be permanently barred from the United States. Perhaps the employer presented bogus documentation in support of the petition – and it is the employee who is being held responsible for it. We are seeing this more and more – and it is the visa applicant who ends up with the short end of the stick: stuck overseas, with no job in the US, and no prospects for future immigration because they have been accused of fraud.
In short, whenever a consular officer recommends revocation of a petition, the employee/visa applicant should consult with his/her own legal counsel so that options may be reviewed. Please feel free to contact us to discuss those options.