Dos visa revocation regulation changes side by side 4 26-2011
 

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Consular Officers will exercise MORE authority to REVOKE Visas and a Request for Reconsideration is no longer possible for the applicant. However, Consular Officer may now "provisionally revoke" or ...

Consular Officers will exercise MORE authority to REVOKE Visas and a Request for Reconsideration is no longer possible for the applicant. However, Consular Officer may now "provisionally revoke" or put the final decision "on hold" while they consider it themselves.

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Dos visa revocation regulation changes side by side 4 26-2011 Document Transcript

  • 1. DOS Visa Revocation Regulation Changes Side-by-Side Comparison“This rule changes Department regulations to broaden the authority of a consular officer torevoke a visa at any time subsequent to issuance of the visa, in his or her discretion. Thesechanges to the Department’s revocation regulations expand consular officer visa revocationauthority to the full extent allowed by statute. Additionally, this rule change allows consularofficers and designated officials within the Department to revoke a visa provisionally whileconsidering a final visa revocation.”“Current regulations limit the circumstances in which consular officers may revoke visas. In lightof security concerns, this amendment grants additional authority to consular officers to revokevisas, consistent with the statutory provisions of the INA. Although this rule eliminates theprovisions that permit reconsideration of a revocation, it also allows for the provisionalrevocation of a visa when there is a need for further consideration of information that might leadto a final revocation. In cases where the person subject to a provisional revocation is found to beeligible for the visa, the visa will be reinstated with no need for reapplication. However, with theexception of provisional revocations, an applicant whose visa has been revoked must apply foranother visa, at which time his or her eligibility for the visa will be adjudicated.”Above from: [FR Doc. 2011-10077 Filed 04/26/2011 at 8:45 am; Publication Date: 04/27/2011]posted at: http://www.ofr.gov/OFRUpload/OFRData/2011-10077_PI.pdf but will be supplantedby publication in Federal Register Vol. 76, No. 81, Wednesday, April 27, 2011. Old Version before 04/27/2011 New Version as of 04/27/2011§ 41.122 Revocation of visas. § 41.122 Revocation of visas.(a) Grounds for revocation by consular (a) Grounds for revocation by consularofficers. A consular officer is authorized to officers. A consular officer, the Secretary, or arevoke a nonimmigrant visa issued to an alien Department official to whom the Secretary hasif: delegated this authority is authorized to revoke(1) The officer finds that the alien was not, or a nonimmigrant visa at any time, in his or herhas ceased to be, entitled to the nonimmigrant discretion.classification under INA 101(a)(15) specifiedin the visa or that the alien was at the time thevisa was issued, or has since become, ineligibleunder INA 212(a) to receive a visa, or wasissued a visa in contravention of INA 222(g)(2) The visa has been physically removed fromthe passport in which it was issued prior to thealiens embarkation upon a continuous voyageto the United States; or(3) For any of the reasons specified inparagraph (h) of this section if the visa has notbeen revoked by an immigration officer as (b) Provisional revocation. A consular officer,authorized in that paragraph. the Secretary, or any Department official to(4) The visa has been issued in a combined whom the Secretary has delegated this
  • 2. Mexican or Canadian B–1/B–2 visa and border authority may provisionally revoke acrossing identification card and the officer nonimmigrant visa while consideringmakes the determination specified in §41.32(c) information related to whether a visa holder iswith respect to the aliens Mexican citizenship eligible for the visa. Provisional revocationand/or residence or the determination specified shall have the same force and effect as anyin §41.33(b) with respect to the aliens status as other visa revocation under INA 221(i).a permanent resident of Canada.(b) Notice of proposed revocation. When (c) Notice of revocation. Unless otherwiseconsideration is being given to the revocation instructed by the Department, a consularof a nonimmigrant visa under paragraph (a)(1) officer shall, if practicable, notify the alien toor (2) of this section, the consular officer whom the visa was issued that the visa wasconsidering that action shall, if practicable, revoked or provisionally revoked. Regardlessnotify the alien to whom the visa was issued of of delivery of such notice, once the revocationintention to revoke the visa. The alien shall has been entered into the Department’salso be given an opportunity to show why the Consular Lookout and Support Systemvisa should not be revoked and requested to (CLASS), the visa is no longer to bepresent the travel document in which the visa considered valid for travel to the United States.was originally issued. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued.(c) Procedure for physically cancelling visas. (d) Procedure for physically canceling visas. AA nonimmigrant visa which is revoked shall be nonimmigrant visa that is revoked shall becanceled by writing or stamping the word canceled by writing or stamping the word“REVOKED” plainly across the face of the “REVOKED” plainly across the face of thevisa. The cancellation shall be dated and signed visa, if the visa is available to the consularby the officer taking the action. The failure of officer. The failure or inability to physicallythe alien to present the visa for cancellation cancel the visa does not affect the validity ofdoes not affect the validity of action taken to the revocation.revoke it.(d) Notice to carriers. Notice of revocationshall be given to the master, aircraft captain,agent, owner, charterer, or consignee of thecarrier or transportation line on which it isbelieved the alien intends to travel to theUnited States, unless the visa has beenphysically canceled as provided in paragraph
  • 3. (c) of this section.(e) Notice to Department. When a visa isrevoked under paragraph (a)(1) or (2) of thissection, the consular officer shall promptlysubmit notice of the revocation, including afull report on the facts in the case, to theDepartment for transmission to DHS. A reportis not required if the visa is physically canceledprior to the aliens departure for the UnitedStates except in cases involving A, G, C–2, C–3, NATO, diplomatic or official visas.(f) Record of action. Upon revocation of anonimmigrant visa under paragraph (a)(1) or(2) of this section, the consular officer shallcomplete for the post files a Certificate ofRevocation by Consular Officer whichincludes a statement of the reasons for therevocation. If the revocation is effected at otherthan the issuing office, a copy of the Certificateof Revocation shall be sent to that office.(g) Reconsideration of revocation. (1) Theconsular office shall consider any evidencesubmitted by the alien or the aliens attorney orrepresentative in connection with a request thatthe revocation be reconsidered. If the officerfinds that the evidence is sufficient toovercome the basis for the revocation, a newvisa shall be issued. A memorandum regardingthe action taken and the reasons therefor shallbe placed in the consular files and appropriatenotification shall be made promptly to thecarriers concerned, the Department, and theissuing office if notice of revocation has beengiven in accordance with paragraphs (d), (e),and (f) of this section.(2) In view of the provisions of §41.107(d)providing for the refund of fees when a visahas not been used as a result of action by theU.S. Government, a fee shall not be charged inconnection with a reinstated visa.(h) Revocation of visa by immigration officer. (e) Revocation of visa by immigration officer.An immigration officer is authorized to revoke An immigration officer is authorized to revoke
  • 4. a valid visa by physically canceling it in a valid visa by physically canceling it inaccordance with the procedure prescribed in accordance with the procedure described inparagraph (c) of this section if: paragraph (d) of this section if:(1) The alien obtains an immigrant visa or an (1) The alien obtains an immigrant visa or anadjustment of status to that of permanent adjustment of status to that of permanentresident; resident;(2) The alien is ordered excluded from the (2) The alien is ordered excluded from theUnited States pursuant to INA 235(c) or 236; United States under INA 236, as in effect prior to April 1, 1997, or removed from the United States pursuant to INA 235;(3) The alien is notified pursuant to INA (3) The alien is notified pursuant to INA 235235(b) by an immigration officer at a port of by an immigration officer at a port of entry thatentry that the alien appears to be inadmissible the alien appears to be inadmissible to theto the United States and the alien requests and United States, and the alien requests and isis granted permission to withdraw the granted permission to withdraw the applicationapplication for admission; for admission;(4) A final order of deportation or a final order (4) A final order of deportation or removal or agranting voluntary departure with an alternate final order granting voluntary departure withorder of deportation is entered against the alien an alternate order of deportation or removal ispursuant to DHS regulations; entered against the alien;(5) The alien has been permitted by DHS to (5) The alien has been permitted by DHS todepart voluntarily from the United States depart voluntarily from the United States;pursuant to DHS regulations;(6) A waiver of ineligibility pursuant to INA (6) DHS has revoked a waiver of212(d)(3)(A) on the basis of which the visa inadmissibility granted pursuant to INAwas issued to the alien is revoked by DHS; 212(d)(3)(A) in relation to the visa that was issued to the alien;(7) The visa is presented in connection with an (7) The visa is presented in connection with anapplication for admission to the United States application for admission to the United Statesby a person other than the alien to whom it was by a person other than the alien to whom theissued; or visa was issued;(8) The visa has been physically removed from (8) The visa has been physically removed fromthe passport in which it was issued. the passport in which it was issued; or(9) The visa has been issued in a combined (9) The visa has been issued in a combinedMexican or Canadian B–1/B–2 visa and border Mexican or Canadian B-1/B-2 visa and bordercrossing identification card and the officer crossing identification card, and themakes the determination specified in §41.32(c) immigration officer makes the determinationwith respect to the aliens Mexican citizenship specified in § 41.32(c) with respect to theand/or residence or the determination specified alien’s Mexican citizenship and/or residence orin §41.33(b) with respect to the aliens status as the determination specified in § 41.33(b) witha permanent resident of Canada. respect to the alien’s status as a permanent resident of Canada.[52 FR 42597, Nov. 5, 1987, as amended at 63
  • 5. FR 16895, Apr. 7, 1998; 66 FR 10364, Feb. 15,2001; 66 FR 38544, July 25, 2001; 67 FR66046, Oct. 30, 2002]§ 42.82 Revocation of visas. § 42.82 Revocation of visas.(a) Grounds for revocation. Consular officers (a) Grounds for revocation by consularare authorized to revoke an immigrant visa officers. A consular officer, the Secretary, orunder the following circumstances: any Department official to whom the Secretary(1) The consular officer knows, or after has delegated this authority is authorized toinvestigation is satisfied, that the visa was revoke an immigrant visa at any time, in his orprocured by fraud, a willfully false or her discretion.misleading representation, the willfulconcealment of a material fact, or otherunlawful means;(2) The consular officer obtains informationestablishing that the alien was otherwiseineligible to receive the particular visa at thetime it was issued; or(3) The consular officer obtains informationestablishing that, subsequent to the issuance ofthe visa, a ground of ineligibility has arisen inthe aliens case.(b) Notice of proposed revocation. The bearer (b) Provisional revocation. A consular officer,of an immigrant visa which is being considered the Secretary, or any Department official tofor revocation shall, if practicable, be notified whom the Secretary has delegated thisof the proposed action, given an opportunity to authority may provisionally revoke anshow cause why the visa should not be immigrant visa while considering informationrevoked, and requested to present the visa to related to whether a visa holder is eligible forthe consular office indicated in the notification the visa. Provisional revocation shall have theof proposed cancellation. same force and effect as any other visa revocation under INA 221(i).{New (c) and other systems upgrades and (c) Notice of revocation. Unless otherwiseprocedural changes did away with the need for instructed by the Department, a consularold (d),(e), and (f)} officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department’s Consular Lookout and Support System (CLASS), the visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to
  • 6. whom the visa was issued.(c) Procedure in revoking visas. An immigrant (d) Procedure for physically canceling visas.visa which is revoked shall be canceled by An immigrant visa that is revoked shall bewriting the word “REVOKED” plainly across canceled by writing or stamping the wordthe face of the visa. The cancellation shall be “REVOKED” plainly across the face of thedated and signed by the consular officer taking visa, if the visa is available to the consularthe action. The failure of an alien to present the officer. The failure or inability to physicallyvisa for cancellation does not affect the validity cancel the visa does not affect the validity ofof any action taken to revoke it. the revocation.(d) Notice to carriers. Notice of revocation of avisa shall be given to the master, commandingofficer, agent, owner, charterer, or consignee ofthe carrier or transportation line on which it isbelieved the alien intends to travel to theUnited States, unless the visa has beencanceled as provided in paragraph (c) of thissection.(e) Notice to Department. The consular officershall promptly submit notice of the revocation,including a full report of the facts in the case,to the Department for transmission to the DHS.A report is not required if the visa has beenphysically canceled prior to the aliensdeparture for the United States.(f) Record of action. Upon the revocation of animmigrant visa, the consular officer shall makeappropriate notation for the post file of theaction taken, including a statement of thereasons therefor, and if the revocation of thevisa is effected at other than the issuing office,a report of the action taken shall be sent to thatoffice.(g) Reconsideration of revocation.(1) The consular officer shall consider anyevidence submitted by the alien or the aliensattorney or representative in connection with arequest that the revocation of the visa bereconsidered. If the officer finds that theevidence is sufficient to overcome the basis forthe revocation, a new visa shall be issued. Amemorandum regarding the action taken andthe reasons therefore shall be placed in the
  • 7. consular files and appropriate notificationmade promptly to the carriers concerned, theDepartment, and the issuing office if notice ofrevocation has been given in accordance withparagraphs (d), (e), and (f) of this section.(2) In view of the provisions of §42.71(b)providing for the refund of fees when the visahas not been used as a result of action by theU.S. Government, no fees shall be collected inconnection with the application for or issuanceof such a reinstated visa.[52 FR 42613, Nov. 5, 1987, as amended at 56FR 49682, Oct. 1, 1991; 73 FR 11028, Feb. 29,2008]