STATE DEPARTMENT INSTRUCTS POSTS NOT TO READJUDICATE APPROVED PETITIONS
by Michael J. Gurfinkel, Esq.

Many people complain that after getting their visa petition approved by the Department of Homeland Security (DHS), they go to the Embassy in their home country for their visa interview. However, the Consul refuses to issue the visa, contending that the applicant does not meet the requirements, or the Consul thinks the person is just not entitled to the visa, and if it were up to the Consul, he would have not even approved the petition itself.

In a recent cable, the US State Department reminded US Embassies and Consular Posts around the world, that “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 due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition.”

That cable goes on to state that Consular Officers “should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition”.

This cable further states that once the petition is approved by DHS, it should be considered as “prima facie evidence” that the requirements for the visa classification have been met, and a Consul may not substitute his own decision for the decision that was already made by the DHS officer who approved the petition. The State Department listed three “important factors” that Consuls should bear in mind when adjudicating or deciding visa cases:

“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 [Consul’s] memo [or report] supporting the petition return [to DHS] 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 [to DHS for revocation]. 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.”

By law, in order for an approved petition to be revoked, 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. Therefore, the State Department reminds Consuls that Consuls should refuse to issue the visa and “return petitions only where there is specific, material and clear evidence to provide the DHS a basis to initiate petition revocation procedures.”

When a Consul refuses to issue a visa (based on a previously approved petition), and wants to return the petition to DHS for revocation, that decision cannot be based on mere whim, suspicion, or difference of opinion with the DHS regarding the applicant’s eligibility for the visa. Instead, the State Department cable instructs that the Consul must prepare a “comprehensive” report, “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."

A person may have been approved for a working (H-1B) visa, as an accountant. However, when the person goes to the Embassy for the visa interview, the Consul might say that, “Your employer doesn’t need an accountant. I think a bookkeeper would be just fine. Visa refused”. Under this cable, the Consul should not be “second guessing” the DHS’s decision (to approve the petition), or refuse to issue the visa because the Consul does not agree with the DHS’s decision to approve the petition.

Unless the Consul can justify the refusal with clear, specific, concrete, and “substantial” evidence of fraud or gross error by DHS, or on some fact that came out during the interview, that was unknown to the DHS at the time the petition was approved, the Consul should not disregard the petition’s approval, but instead should process the visa.

In conclusion, I truly commend Consuls for the task they face, and the job they must do each and every day. They are presented with hundreds of cases each day, and need to make the “right” decision each time. Some people do try to obtain a visa through fraud and fraudulent documentation, and the Consuls simply want to make sure that those people do not succeed. Let us hope that this cable eases the Consuls’ burden, by defining their role, and letting them know that they need only focus on fraud and gross error, and they do not need to spend time making a new decision on “approving” the petition, which was already done by the agency in whom “Congress has placed responsibility and authority” -- the DHS.

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