New York Lawyer's Legal Updates

Rescission Of Adjustment Of Status

Author: US green card lawyer Alena Shautsova

Mr. X applied for his US citizenship after being a green card holder in the US for much longer than 5 years. His naturalization application was pending for a long time and finally, he was called for the interview. The interview went well, but the officer said she needed more time to issue a decision. At this point, Mr. X did not worry: after all, he read on forums it was pretty standard. Several months later, he received a denial letter, stating that he was not eligible for the adjustment of status at the time the adjustment of the status decision was made. He was in shock…. He used an attorney to file for his green card! How could there be a mistake?!

Nevertheless, the mistake was made: at the time of the adjustment, the USCIS officer overlooked the fact that Mr. X could not adjust due to his entry based on a fiancé visa. It was not Mr. X’s fault, it was USCIS’s mistake and perhaps, his then attorney. Now, Mr. X is facing with the problem: USCIS can rescind his permanent residency or/and place Mr. X in removal proceedings.

So what happens next? A notice of intention to rescind the status would be sent to the person, and if the person does not answer it within 30 days, no hearing before an Immigration judge will take place. If the person contests it, a hearing will take place. Perhaps, this suggestion is based on the procedure that used to exist. 8 CFR 246. However, this procedure is not based on traditional rules of evidence (hearsay can be accepted). The standard for the process is “clear, convincing and unequivocal.” Yoldo v. Ins, 424 F 2d 501 (6th Cir. 1970).

Here, however, is a trick. The law says that USCIS has 5 years to initiate the rescission proceedings. But many courts held that is not the case, and USCIS can do it any time after the green card is issued in error. To the author’s knowledge, only the Third Circuit upheld this statute of limitations.

Luckily, if one obtained their status through consular processing and not an adjustment, the rescission provision should not apply. For example, Ms. Y received an immigrant visa in 2004 and entered the US shortly. In 2020 she filed for citizenship and it was uncovered that her immigrant visa was issued in error. Ms. Y shall be placed in removal proceedings, not rescission.

Further, where USCIS decided to rescind one’s status, the court has no jurisdiction to review the decision. The court may have jurisdiction only if the person alleges a lack of notice of the initiation of the process. Estrada vs. Napolitano, 604 F 3d 402 (7th Cir. 2010).

Now, what can be possible solutions? When one’s permanent status is rescinded, a person’s status reverts back to his/her original status and the person is treated as an overstay. The author suggests that traditional defenses in removal proceedings should be available to such a person, and perhaps 237(A)(1)(H) Waiver if a person is accused of obtaining the status via misrepresentation/ fraud. Please take into consideration that the Immigration law is like the ever-changing river nowadays, and all citations, strategies of defense, and representations must be verified before presented in court or USCIS. This article cannot serve as legal advice for a specific case, to get advice for a specific case, please book a consultation at 917-885-2261.

20 February 2020
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