What triggers revocation of approval of immigrant petition and what is the effect?
In general, obtaining approval of an immigrant petition is a first step to permanent resident status in the U.S. Once approved, USCIS will adjudicate beneficiary’s application to adjust status filed in the U.S. If filed outside the U.S., the U.S. embassy/consulate will adjudicate his/her application for an immigrant visa.
For the approval of the application, in principle, approval of the underlying immigrant petition must remain valid. That is, except certain cases, the beneficiary needs to remain in the status for which USCIS approved the immigrant petition (i.e., employment, family relationship).
However, certain beneficiaries must wait for years to file the application after filing an immigrant petition due to their visa classifications or nationalities. And even if they may concurrently file the application, it can take months for U.S. officers to adjudicate the application.
Accordingly, the situation can change while the application is pending. And such change can trigger revocation of the approved immigrant petition. If that happens, USCIS or U.S. embassy/consulate may deny the application to adjust status or application for an immigrant visa.
Thus, it is important for a beneficiary to recognize what triggers the revocation of approved immigrant petition. As discussed below, there are mainly two categories of the revocation:
1. Automatic Revocation of Approval of Immigrant Petitions
The approval of an employment-based or family-sponsored immigrant petition is automatically revoked as of the date of approval if:
(1) The beneficiary failed to apply for an immigrant visa within 1 year after the notification to him/her of the visa availability
However, if the beneficiary establishes within 2 years following the notification that such failure to apply was due to circumstances beyond his/her control, USCIS will reinstate the approval of the immigrant petition.
(2) Any of the following circumstances occur before the beneficiary begins the journey to the U.S. (when the beneficiary applied for an immigrant visa at U.S. embassy/consulate) or the decision on his/her adjustment application becomes final (when the beneficiary applied for adjustment of status in the U.S.):
Immediate Relative and Family-Sponsored Immigrant Petitions
(a) Upon written notice of withdrawal filed by the petitioner with USCIS;
(b) Upon the death of the beneficiary;
(c) Upon the death of the petitioner, unless:
- The petition is deemed to have been approved as a Form I-360 (Petition for Amerasian, Widow(er) or Special Immigrant); or
- USCIS determines in its discretion that it is inappropriate to revoke the approval of the petition for humanitarian reasons. USCIS may make the determination only if the beneficiary asks for reinstatement of the approval and establishes that he/she has a substitute sponsor who is willing to sign the Affidavit of Support.
(d) Upon the legal termination of the marriage, when a U.S. citizen or lawful permanent resident has petitioned for the beneficiary based on the marriage, however:
- The approval of a spousal self-petition based on the relationship to an abusive U.S. citizen or lawful permanent resident will not be revoked solely because of the termination of the marriage to the abuser;
(e) Upon the remarriage of the spouse of an abusive U.C. citizen or lawful permanent resident, when the spouse has self-petitioned for an immigrant visa based on the abusive relationship (*1);
(f) Upon a child reaching the age of 21, when the child is an immediate relative of a U.S. citizen, except when:
- A U.S. citizen filed the petition; or
- The self-petition was filed by the child of an abusive U.S. citizen based on the abusive relationship;
(g) Upon the marriage of a child, when the child is an immediate relative of a U.S. citizen, except when(*2):
- A U.S. citizen filed the petition; or
- The self-petition was filed by the child of an abusive U.S. citizen based on the abusive relationship;
(h) Upon the marriage of a son or daughter of a U.S. citizen (*3);
(i) Upon the marriage of a son or daughter of a lawful permanent resident; or
(j) Upon legal termination of the petitioner’s status as lawful permanent residence, unless:
- The petitioner became a U.S. citizen.
Employment-based Immigrant Petitions
(a) Upon invalidation of the labor certification in support of the petition;
(b) Upon the death of the petitioner or beneficiary;
(c) Upon written notice of withdrawal of the petition filed by the petitioner to USCIS, if:
- The petitioner filed the withdrawal less than 180 days after approval of the employment-based preference petition; and
- An associated adjustment of status application has been pending less than 180 days (*4); or
(d) Upon termination of the petitioning employer’s business, if:
- The termination occurred less than 180 days after petition was approved under EB-1B, EB-1C, EB-2, or EB-3 classification; and
- An associated adjustment of status has been pending lees than 180 days (*5).
When it appears to USCIS that the automatic revocation of approval of a petition has occurred, USCIS must sent the petitioner a notice of the revocation.
2. Revocation of Approval of Immigrant Petitions on Notice
When the necessity for revocation comes to their attention, USCIS may revoke the approval of the immigrant petitions upon notice to the petitioner. USCIS may do so on any ground other than those for the automatic revocation of approval of petitions.
What is Notice of Intent?
USCIS may revoke the approval of the petition only on notice to the petitioner. USCIS will give the petitioner the opportunity to offer evidence supporting the petition and opposing the grounds for revocation of the approval.
What is Notice of Revocation?
If USCIS revokes the approval, they will provide the petitioner with a written notification of the decision. In the notification, USCIS must explain the specific reasons for the revocation.
Can I Appeal the Decision?
The petitioner may appeal the decision to revoke the approval within 15 days after USCIS’s revocation notice.
USCIS’s webpage explains the revocation of approved immigrant petitions.
*1: Section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Immigration and Nationality Act.
*2: Under the exceptions, the petition or self-petition remains valid and the beneficiary’s status will become third preference (F3) – married sons and daughters of U.S. citizens.
*3: However, the petition remains valid and the beneficiary’s status will become third preference (F3) – married sons and daughters of U.S. citizens.
*4: If a petitioning employer withdraws an employment-based petition, the beneficiary must obtain a new I-140 petition to seek adjustment of status or issuance of an immigrant visa unless eligible for adjustment of status under job portability provisions (section 204(j) of the Act).
*5: If a petitioning employer’s business terminates the job offer, the beneficiary must obtain a new I-140 petition to seek adjustment of status or issuance of an immigrant visa unless eligible for adjustment of status under job portability provisions (section 204(j) of the Act).
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