Chapter 10 - Decision and Post-Adjudication

A. Approval

If the petitioner properly filed the petition and the officer is satisfied that the petitioner has met the required eligibility standards, the officer approves the petition.

After a petition has been approved and an immigrant visa is available, a beneficiary may apply for an immigrant visa with U.S. Department of State (DOS) or apply with USCIS to adjust status to permanent residence if in the United States.^[1]

B. Denial

If the petitioner has not established eligibility, the officer denies the petition.

The officer should write the denial in clear and comprehensive language and cover all grounds for denial.^[2] The officer should refer in the denial to the controlling statute or regulations and to any relevant precedent or adopted decisions. The decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider. The denied petition should then be held locally until the time period for an appeal or motion has passed.

The denial decision may be appealed to the Administrative Appeals Office (AAO) if falling within the AAO’s jurisdiction.^[3] A petitioner may not appeal a denial decision that is based upon lack of permanent labor certification. A petitioner may appeal a case that is denied because the beneficiary does not qualify for the Schedule A designation or for the waiver of the job offer in the national interest, or because USCIS determined that a successor-in-interest does not exist.

C. Revocation

A petition’s approval may be revoked, in the agency’s discretion, “for good and sufficient cause.”^[4] A petition may also be withdrawn upon a written request for withdrawal of the petition filed by the petitioner (who in some cases may also be the beneficiary).^[5]

DOS may also terminate the registration of a beneficiary with an approved petition if such beneficiary fails to apply for an immigrant visa within 1 year of notification of availability of a visa number. The same statutory provision provides for reinstatement of registration in certain cases.^[6]

According to the AAO’s adopted decision in Matter of V-S-G- Inc. (PDF, 363.71 KB), beneficiaries who are otherwise eligible to and have properly requested to port under the American Competitiveness in the 21st Century Act (AC21) are affected parties.^[7] As a result of this decision, USCIS provides a Notice of Intent to Revoke (NOIR) or a Notice of Revocation (NOR) or both to a beneficiary who has an approved petition and an Application to Register Permanent Residence or Adjust Status (Form I-485) that has been pending for 180 days or more, and has properly requested to port.

The porting request is proper when it has been favorably reviewed by USCIS before the issuance of a NOIR or NOR. Before January 17, 2017, a beneficiary requested to port by submitting a request in writing. Beginning January 17, 2017, a beneficiary must request to port by submitting Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J).^[8]

D. Fraudulent Marriage Prohibition

USCIS may not approve a petition, including an employment-based petition, filed on behalf of a beneficiary who has been determined to have attempted or conspired to enter into a marriage for the purpose of evading immigration laws.^[9]

Although it is not necessary that the beneficiary has been convicted of, or even prosecuted for the attempt or conspiracy, the evidence of the actual act, attempt, or conspiracy must be contained in the beneficiary’s A-file. If a review of the beneficiary’s A-file indicates that he or she has attempted or conspired to obtain an immigration benefit by virtue of a fraudulent marriage, USCIS sends the petitioner a Notice of Intent to Deny (NOID) or NOIR that outlines the basis for the determination. The marriage must be shown to have been a sham at its inception for this prohibition to apply.

To overcome this ground of ineligibility, the petitioner must convincingly demonstrate that the beneficiary entered the marriage for the purpose of starting a life with his or her spouse and not strictly for the purpose of obtaining an immigration benefit.

If the evidence provided in response to the NOID or NOIR does not overcome the fraudulent marriage determination, the officer should deny or revoke the approval of a petition filed on behalf of any beneficiary for whom there is substantial and probative evidence of such an attempt or a conspiracy, regardless of whether the beneficiary received a benefit through the attempt or conspiracy.

Footnotes

[^ 1] See Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment [7 USCIS-PM E].

[^ 2] See 8 CFR 103.3(a)(1)(ii). See DHS Delegation No. 0150.1 para. (2)(U) (Mar. 1, 2003), which delegated the Administrative Appeals Office’s jurisdiction over the decisions listed in 8 CFR 103.1(f)(3)(iii)(B) (PDF) (as they appeared February 28, 2003).

[^ 3] See 8 CFR 103.3(a)(2).

[^ 4] See INA 205.

[^ 5] See 8 CFR 205.1 and 8 CFR 205.2.

[^ 6] See INA 203(g).

[^ 7] See Pub. L. 106-313 (PDF) (October 17, 2000). See Matter of V-S-G- Inc. (PDF) (PDF, 363.71 KB), Adopted Decision 2017-06 (AAO Nov. 11, 2017).

[^ 8] For more information, see Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5].

[^ 9] See INA 204(c). The fraudulent marriage prohibition that is articulated in INA 204(c) and 8 CFR 204.2(a)(1)(ii) does not distinguish between forms, but merely states “a petition for immigrant visa classification.” See Matter of Christo’s, Inc. (PDF), 26 I&N Dec. 537 (AAO 2015).