This Week in Global Immigration Alerts - Week of October 20th>> READ MORE
The Fight Book: Chapter I-H1B: Unfounded Revocations - Fakhoury Law Group || Global Business & Employment-Based Immigration || Michigan, California, India
Rami Fakhoury and Mark Levey
Copyright @2010 Fakhoury Law Group/Rami Fakhoury
Yet another increasingly common problem facing companies that outsource non-immigrant workers is a wave of unfounded revocations of petitions. This commonly happens at the time of petition extension or of visa renewal pursuant to a policy of FDNS-DS notification to the consul that an H-1B or L-1 employee has been placed at a third-party client site, or that there has been an issue with another outsourced employee of the same company that has been targeted for enforcement activity.
Often, the Notice of Intent to Revoke (NOIR) will state no specific allegations of wrongdoing on the part of the petitioner, such as fraud or material misrepresentation, relevant to the matter, but will merely make a blanket assertion that the petition has been found invalid or the beneficiary ineligible for the benefit sought. It may furthermore fail to identify any particular omission or inadequacy or specific issue not already addressed on the record the omission of which might have prevented approval. In addition, the NOIR also frequently has not stated any specific event or circumstance that has arisen since the date of approval that might later properly render an approved petition void or make the respondent ineligible for the status granted.
Revocation is particularly inappropriate in a matter where the I-129 petition was only recently approved pursuant to a thorough and exhaustive review and supplementation of the record attendant to a Request for Evidence (RFE). The Director would have had ample, recent opportunity to determine eligibility. Eligibility for the status granted was, indeed, found. Inasmuch as the NOIR raises no specific allegation of wrongdoing or emergent circumstance that would have foreclosed approval — such as a specific finding of fraud or recent closure of the company — and the petition had already been approved, the petitioner has discharged its responsibility under the law in responding to the NOIR.
No new substantial issues are raised by the notice, and all substantive issues of eligibility have been exhausted.
In some cases, while the allegation is made that petitioner and/or beneficiary “violated the terms and conditions of the approved petition”, no specific violation is identified in the notice. It would be arbitrary and capricious for the Center Director to revoke a petition under these circumstances. Revocation would amount to a reversible error.
In such a case, the respondent is under no legal obligation as far as a reviewing court would be concerned to provide new documentation upon receipt of a NOIR, but the respondent should respectfully request that the NOIR be withdrawn. Nonetheless, it is best to attempt to be responsive as possible in addressing the issues alleged in the NOIR and and to make a reasoned argument why revocation is unsupported by statute, regulation and precedent decision. Furthermore, the notice itself may be imprecisely drafted and be so vague and unstructured so as to be legally defective. A defective NOIR would be one that:
- does not identify any specific violation that might warrant revocation.
- In addition, it may cite alleged “discrepancies” in the record to be “violations,” which appears to conflate two of the five regulatory grounds for revocation, without establishing either.
- Furthermore, the notice may fail to address probative evidence of eligibility on the record.
It should be pointed out that such a NOIR would likely be viewed as both legally unfounded and technically defective as a notice.
In response to the NOIR, the respondent should review the relevant legal standards along with the record of the matter.
Another category of revocations are those that occur subsequent to FDNS-DS site audits. A recent example of this is a NOIR issued in a previously approved H-1B extension due to the self-employed issue after an in-office investigation visit. Smaller firms and those run by owner-directors are particularly vulnerable to what appears to be an emerging trend in USCIS enforcement of Neufeld dicta. Typically in an H-1B petition for a very small firm or sole owner, an outside friend or service provider (typically a CPA) will be nominated to the Board as the company's President (listed in the corporate documents of the company as an Officer), and will serve as the signatory on the I-129. Such a petition was likely to have been approved without trouble in previous years. Now, this practice is becoming a “fraud” issue if the petition does not affirmatively assert the sole proprietorship, even if the the H-1B petition clearly stated that she founded the company and the company shares her last name so the ownership issue was not masked.
In such cases, USCIS may now deny or revoke the petition, alleging that the signatory is not closely linked enough to the petitioning company. The signatory may be interviewed, and any statements or indications that (s)he does not have knowledge of the actual operations of the business outside of the professional matters (s)he handles, may lead the investigator to conclude the officer is an Independent contractor, and not a bona fide employee. We see here yet another instance of the spreading application of the “control” issue to deny cases that would have typically have been approved before. All the same litigation points raised about substantive changes in interpretation without Sec. 553 publication apply here, as well.
Revocations that occur while an application for change of employers is pending under the ACT-21 “portability” provision may be held to be “out of status”, but that alien will not be considered to have overstayed her visa and period of stay. If the Service Center declines to exercise favorable discretion under 8 C.F.R. § 214.1(c)(4) in favor of an extension of status (s)he may nonetheless be held to be “out of status” during that time, leading to 222(g) issues, including ineligibility for COS/EOS and the third-country consular processing prohibition. [That position was upheld in the I-140 context within the 9th Circuit. In July, 2009, a panel court held that the Portability Provision of INA § 204(j) does not affect USCIS’s revocation authority, which permits revocation “at any time” for “good and sufficient cause” pursuant to 8 C.F.R. § 205.2, and that the notice of intent to revoke was legally sufficient. [Herrera v. US Citizenship & Imm. Servs., No. 08-55493 (9th Cir., July 6, 2009).]
Meanwhile, VSC's current stated position is as follows:
If the beneficiary ports to a new employer and accepts employment with that new employer upon the filing of a new petition, prior to the revocation of the H-1B petition filed by his or her former employer (emphasis added), then the beneficiary will be in an "authorized period of stay" while the newly filed petition is pending pursuant to INA § 214(n). The period during which a timely filed EOS petition is pending continues the alien's period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but it does NOT extend the alien's period of authorized status (emphasis added).
"Authorized status" or authorized period of admission and "period of stay authorized by the Attorney General" are not interchangeable terms and do not carry the same legal implications. An alien's authorized period of admission is determined with reference to his or her Form I-94 (arrival/departure record) or, where the alien is the beneficiary of an approved EOS or COS petition, with reference to the validity dates on the Form I-797 ("Notice of Action") approval notice. Matter of Lee could be pertinent because in Lee, an alien admitted under 101(a)(15)(H)(i), was found to not be maintaining such status when he applied for a change of status as he ceased his temporary employment and thus terminated his lawful nonimmigrant status.
Currently, statute and regulations do not provide any grace period from the time an alien ceases employment until the time a new petition is filed on his or her behalf; however, USCIS may, in its discretion, excuse a late filed petition when extraordinary circumstances exist pursuant to 8 CFR § 214.1(c)(4).
That interpretation by VSC lead to follow-up inquiry from AILA liaison and a clarification, as summarized below:
VSC did not state that the H-1B nonimmigrant had to be currently maintaining status with the old employer to be eligible for portability, nor did VSC indicate that that it would not exercise discretion allowed under 8 C.F.R. § 214.1(c)(4) in favor of an extension of status.
Note that VSC does not adjudicate portability. Eligibility for H-1B portability is defined at INA § 214(n) as follows:
- 1. The foreign national was lawfully admitted
- 2. the new petition is "nonfrivolous"
- 3. the new petition was filed before the date of expiration of period of authorized stay
- 4. subsequent to lawful admission, the foreign national has not been employed without authorization
If an H-1B nonimmigrant meets the above-mentioned criteria, s/he would be eligible to work pursuant to H-1B portability even if s/he was not eligible for an extension or change of status. So, for example, an H-1B nonimmigrant is terminated from her H-1B employer on January 15th. In order to avoid monetary penalties, her H-1B employer requests revocation of the petition that same day, and it is automatically revoked under 8 C.F.R. § 214.2(h)(11)(ii). Two months later, the alien finds a new employer who files a new, non-frivolous H-1B petition on her behalf. Since 1) she was lawfully admitted; 2) the new petition is non-frivolous; 3) her I-94 has not expired and she has not worked without authorization, she is eligible to start working under INA § 214(n). However, she may not be eligible to extend her H-1B without a favorable exercise of discretion under 8 C.F.R. § 214.1(c)(4)
This does not mean she is not authorized to work under H-1B portability. What it means is that she may work "until the new petition is adjudicated." Upon the approval of the petition, authorization to accept employment pursuant to H-1B portability terminates, and, if the USCIS declines to favorably exercise discretion under 8 C.F.R. § 214.1(c)(4) to "forgive" the failure to maintain status and to grant an extension of stay, she instead will need to depart the U.S. and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.
NOTE: With regard to the ability of a returning alien with a facially valid nonimmigrant visa to reenter the U.S. with the old visa and a new Form I-797, the applicant may encounter difficulties at the Port of Entry (POE). The degree of difficulty will depend upon the ground of revocation and as well as any period of unlawful presence accrued.
Arriving aliens with visas that have been cancelled by employers at the time of separation of employment (“automatic revocation”, per 8 CFR 214.2(h)(11)(ii)) – and, who filed for a new petition, subsequently approved, prior to the date that USCIS issued a revocation notice – should not have significant difficulties; however, at the other end of the range of scenarios, an applicant for admission who has had a visa revoked under 8 C.F.R. § 214.2(h)(11)(iii) ("Revocation on Notice", which usually denotes revocation for cause), and who accrued unlawful presence by failure to depart after receiving notice, will likely not be admitted, and may be subjected to Expedited Removal at the POE under Sec. 240, which would entail a ten-year bar to readmission.
An applicant who arrives at a POE with an approval notice for a new I-129 petition filed after having her visa automatically revoked under (ii), will likely receive treatment somewhere between the two – as a 222(g) out of status alien – she, at least, should expect a wait in secondary inspection while the Chief Port Inspector sorts out the situation.
Some 222(g) arrivals may be admitted under the interpretation offered in the February 20, 2009 VSC liaison report, but it is also just as likely that any alien who receives a notice under (iii), Revocation on Notice, will be closely interrogated, compelled to withdraw her application for admission, and forced to fly back out of the U.S. to obtain a new visa at her home consulate abroad. A third alternative would be admission granted with a 212(d)(3) waiver of inadmissibility, an act of discretion that has been discouraged by DHS in recent years, except in exceptional circumstances.
A different situation is presented when the alien receives a Notice of Intent to Revoke (NOIR) and responds in a timely fashion. It is reportedly taking as long as a year for Service Centers to make a final decision, and during that time it would be unwise for the alien to depart the U.S. and attempt reentry. In most cases, it might be better to withdraw the appeal once a new I-129 is approved. If the client wishes to resolve the issue as quickly as possible, the attorney may file a Mandamus. It may be possible in meritorious cases for the USCIS/OIL attorney to facilitate a prompt re-approval by the Service Center. However, the State Department is not bound by the decision of USCIS, and may end up denying the petition, anyway.
An alien with 180 days unlawful presence accrued after receipt of a Revocation Notice will be subject to the 3/10 year inadmissibility rule if she departs the U.S., unless an appeal of a Revocation is successful.
Finally, a company (or an attorney advising an employer about compliance) is put in a difficult position with regard to terminations. In recent years, most advise their clients to immediately withdraw the petition along with the LCA. But, this may put the employee in a difficult position. There has been a suggestion that the interests of both can be protected if the employer withdraws the LCA at DOL immediately, but waits to cancel the I-797 from USCIS. That might protect the company from an assessment of back wages by DOL against the employer, while there is no actual provision under the law for USCIS to assess a penalty for a delay in filing the withdrawal letter. Recall that USCIS has no jurisdiction over wage and hour matters, and the employer who allows a reasonable amount of time to workers to find another sponsor before notifying USCIS is not in violation of the law. However, with the number of FDNS site audits being conducted, such a policy – no matter how humane and well-intended — may if detected may have other consequences.
The Regulatory Standard for H-1B Revocation
The regulatory standard for revocation of H-1B non-immigrant visas is as follows. 8 C.F.R. § 214.2(h)(11)(iii), which governs "Revocation on notice," provides that:
The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or
(2) The statement of facts contained in the petition was not true and correct; or
(3) The petitioner violated the terms and conditions of the approved petition; or
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or
(5) The approval of the petition violated paragraph (h) [*18] of this section or involved gross error.
The NOIR Fails to State Substantial Evidence that Support the Grounds for Revocation Cited
The notice may allege the following:
“USCIS has received information regarding the beneficiary and/or petitioner, who have violated the terms and conditions of the approved petition and, therefore, the beneficiary no longer qualifies for the classification sought.”
While no specific allegation of wrongdoing is articulated in this NOIR, this determination appears to be based on the two following issues raised by the Director:
- 1. “Not clear that the petitioner will be the beneficiary’s employer”
“[…]The instant I-129 petition indicates that this beneficiary was to work at the petitioner’s office at [address].
“However, it is not clear that the petitioner will be the beneficiary’s employer. It appears that the petitioner’s business consists of locating aliens with computer backgrounds and subsequently placing these aliens in companies that require the services of computer programmers. The petitioner negotiates contracts with various computer companies and, in turn, these companies pay the petitioner for this service. The petitioner will then pay the respective beneficiaries.
“[I]t appears that the beneficiary will be working on a software product that will be implemented to create or improve a client’s existing system. However, the petitioner did not submit invoices, purchase orders contracts or agreements with any client(s) to support the work the beneficiary would be doing as claimed. [sic]
“A document entitled “Scope of Work (SOW) for implementation at [client name] Version (2.0) and [title], were submitted as evidence, however, the record is devoid of any partnership or service agreement between the petitioner and [the client] to substantiate that such undertakings exist;
“Discrepancies encountered in the evidence call into question the petitioner’s ability to document the requirements under the statute and regulations. The discrepancies in the petitioner’s submissions have not been explained satisfactorily. Doubt cast on any aspect of the evidence as submitted may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition”
The Director’s summation of the evidence submitted, above, is incomplete and deficient. It would not form a reasonable basis to conclude there has been any violation of the terms and conditions of an approved petition. It also omits mention of other documents on the record that was submitted at the same time as part of the petitioner’s response to the RFE. While the NOIR references in passing the documents above, and dismisses them out of hand – without explaining how or why the Director holds these to amount to a “violation,” or even why they might be inadequate – the notice altogether omits consideration of other documents on the record that were of relevant and probative value. Such omission in a decision or notice of intent to deny is also reversible error on the Director’s part.
A complete listing of the documents provided in response to the RFE should be attached as Appendix A to the response. If the NOIR omits discussion of significant documents, those should be referenced and their probative value discussed. It should further be pointed out that those documents, singly and as part of a larger group of exhibits submitted as part of the RFE response provide conclusive evidence of the existence of the in-house software development program, or other significant evidentiary fact, as well as documentation of any ongoing software development agreement between the petitioner and its client to substantiate the work the beneficiary performs and will continue to be carrying out for the petitioner in the foreseeable future.
This sort of NOIR is fundamentally defective for several other reasons. First, it fails to state a basis in substantive evidence to conclude the petitioner was ineligible for the original petition. While it fails to discuss probative evidence of in-house H-1B caliber employment on the record, the notice is further and more fundamentally defective for concluding that lack of certain extraneous documents amount to a “violation” of “the terms and conditions of the approved petition”, under subpart (3) of 8 C.F.R. § 214.2(h)(11)(iii). If the Director actually believes that the record was flawed or incomplete, [s]he should have cited a different ground for denial: “(5) The approval of the petition violated paragraph (h) [*18] of this section or involved gross error.” But, the latter subsection is not cited, and any perceived gaps in the record would not amount to a “violation” under subpart (3). For this reason alone, the NOIR would be found upon review to be defective, and the Director should be encouraged to withdrawn it.
The NOIR characteristically demands third-party “invoices, purchase orders contracts or agreements with any client(s)” , and seems to allege that these were not provided is of some overriding importance. The notice often fails to indicate what ground of denial or of revocation these third-party documents might go to. The nexus between the record and the grounds alleged for revocation has not been established. Failure or refusal to turn over documents that don’t have probative value does not amount to grounds to properly deny or revoke a petition. [See, Chapter 2, Evidentiary Issues]
In any instance, these third-party documents are extraneous items unnecessary to establish eligibility. Other documents on the record should have been submitted to address the sort of issues the Director later raised. The record should establish: 1) the validity of the qualifying employment relationship between the petitioner and the beneficiary; along with 2), the fact the employer maintains H-1B caliber work for the beneficiary. If the documents provided on the record have established eligibility, then those not provided are simply irrelevant to revocation unless there was “gross error” in the approval of the petition. Gross error has not been raised or established in this case. The lack of extraneous or redundant documentation about third-parties is not valid grounds for revocation.
A “gross error” in H-1B adjudication has been held to be “unmitigated or absolute error”:
Where the original approval reflects gross error, it merits revocation under applicable regulations. 8 C.F.R. § 214.2(h)(11)(iii)(5). Gross error occurs when approval for a petition constitutes unmitigated or absolute error, such as an approval that was granted contrary to the requirements stated in the statute or regulations.
That is clearly not applicable to the present petition that has been subjected to particularly close scrutiny in examinations. Instead, revocation requires a clear finding of some substantial fraud, deceit, deficiency, or major inconsistency in the record — something so substantive that any reasonable adjudicator would perceive that eligibility is precluded. An impartial reviewer, such a federal judge, is unlikely to be persuaded that anything within this sort of NOIR casts substantial doubt on the veracity of the representations made, or amounts to any of the five grounds for revocation allowed by regulation. There is no rational basis articulated in the notice for the disadvantageous distinction and the disadvantageous treatment accorded the petitioner relative to firms that maintain all their operations on-site.
The NOIR might raise a second allegation:
- 2. ““Discrepancies encountered in the evidence call into question the petitioners ability to document the requirements under the statute and regulations.”
The respondent might respond to that allegation, “What discrepancy, exactly, is the Director alleging here? Even if there were, in arguendo, significant gaps in the record, these are not ‘discrepancies.’”
In addition, this sort of NOIR articulates no reason to conclude that approval was granted under false pretences, or that eligibility was not, in fact, well-established by the record. The respondent should remind the Center Director that the examiner had ample opportunity to raise and resolve issues such as the H-1B caliber of the work performed. It should also be pointed out the NOIR articulates no substantial new evidence that might make the Director conclude the petitioner and/or beneficiary “have violated the terms and conditions of the approved petition and, therefore, the beneficiary no longer qualifies for the classification sought.” That allegation is not substantiated by anything articulated in the body of the NOIR, and such a conclusion is utterly unsupported in the record. What “violation” of the terms and conditions of the petition is this in reference to? If that is not made clear in the body of the NOIR, such a notice is technically defective.
It is axiomatic that any basis of a revocation must be articulated by the decision-maker and must be found and identified in the record. In Matter of Estime, Interim Decision #3029 (BIA, 1987) the Board of Immigration Appeals (BIA) cites numerous cases to support the principle that any determination of ineligibility must be fully grounded in the record within the context of revocation of a visa petition:
[D]etermination of statutory ineligibility is not valid unless based on evidence contained in the record of proceedings. 81 CJJ §8103.2(b)(2), 205.2(b) (1987); Matter of Mata, 15 I&N Dec. J524 (BIA 1975) (construing 8 C.F.R. §§205.3, now 205.2(b), and 103.2(b)(2)); see also Matter of Holmes, 14 I&N Dec. 647 (BIÀ 1974); Matter of Arteaga-Godoy, 14 I&N Dec. 226 (BIA 1972). In determining what is "good and sufficient cause" for the issuance of a notice of intention to revoke, we ask whether the evidence of record at the time the notice was issued, if unexplained and un-rebutted, would have warranted a denial based on the petitioner's failure to meet his or her burden of proof.
Further, pursuant to to 8 C.F.R. § 103.2(b)(2) (1987), the notice of intention to revoke must include a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence (e.g., the investigative report).1 Similarly, with respect to a decision to revoke, we ask whether the evidence of record at the time the decision was issued (including any explanation, rebuttal, or evidence submitted by the petitioner pursuant to 8 C.F.R §§ 103.2(b) or 205.2(b) (1987)) warranted such a denial. Where a. notice of intention to revoke is based on an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained, even if the petitioner did not respond to the notice of intention to revoke.
The fact that part of the petitioning company’s business is to place workers at client sites has likely been openly acknowledged and documented by the petitioner, and that factor has already been considered at great length by the examiner in approval of the petition. That fact, however, does not constitute either a violation of paragraph (h)" of § 214.2 or “gross error.” The Director must base her decision to motion to revoke in grounds that are substantial and particularized to the case at hand, and may not assume that there is some legal basis to subject consulting firms that outplace some of their employees to heightened scrutiny and baseless revocation actions. If not just individualized error behind the decision to motion to revoke, what appears to have occurred here is application of a policy to subject a heavy usage H-1B petitioner with outsourcing operations to yet another round of examinations — in effect, a second-bite of the RFE apple — in order to frustrate the company’s ability to hire H-1B workers.
Clearly, USCIS handling of this petition involves application of an improperly elevated standard of evidence inconsistent with regulation on account of its history of outplacement of H-1B workers. Another fatal USCIS error in this denial, and a pattern of similar cases, is the fundamental misapplication of regulation. This occurs in two areas:
1) First, the applicable regulation [8 CFR 214.2(h)(4)(ii)] states that the H-1B employer must show that it will “supervise, or otherwise control” its workers, but the Service practice is to require documentation amounting to a prospective showing of actual control. That involves an improperly elevated burden of proof that is inconsistent with applicable regulation.
2) Second, in effect, the Service is treating companies that place H-1B workers at client sites as employment agents rather than employers, for which there are two different regulations governing documentation requirements for itineraries. USCIS improperly imposes the higher burden of evidence for “agents” [8 CFR 214.2(h)(2)(i)(F)] on virtually all companies that outsource – even those that clearly establish they, in fact, supervise the H-1B workers they employ — disadvantaging them relative to other H-1B employers who keep workers on-site, which can more easily meet the documentation requirements for “employers” under 8 CFR 214.2(h)(2)(I)(B). In support of this disadvantageous distinction, USCIS now claims it is mandated by common law principles as well as nationwide application of a panel decision of the 5th Circuit, the oft-cited Defensor v Meissner case which has been invoked to deny many hundreds of H-1B (and L-1B) cases in recent years.
The NOIR also alleges “discrepancies” in the documentary record submitted by the Respondent that might give rise to doubts about the accuracy of the rest of the record. That relies implicitly upon a misreading of Matter of Ho 19 I&N Dec. 582 (Comm. 1988), and “cited with approval, Spencer Enterprises v United States of America, 229 F. Supp.2d 1025, 1038 (E.D. Cal. 2008).” However, these “discrepancies” are easily shown, below, to be trivial and immaterial to such a finding, and cannot form a basis for denial. As the 9th Circuit found in review of the District Court Spencer Enterprises decision, “A few errors or minor discrepancies are not reason to question an alien's credibility. See, e.g., Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.2000). Numerous errors and discrepancies, however — especially where INS is evaluating the credibility of a business plan — raise serious concerns about the viability of the enterprise.”
If there are not numerous errors and discrepancies by the petitioner in the case, then application of the Ho doctrine was inappropriate, casting into further doubt the legal basis of the NOIR.
Therefore, the notice of intent to deny this sort of petition is unfounded in law and regulation, precedent, and Circuit Court decision interpreting precedent decision. In addition, such a notice exhibits serious errors in interpretation of principles and norms observed by the federal courts in considering appropriate standards of evidence. Finally, USCIS treats the petitioner in a disparate, disadvantageous fashion from an otherwise similar petitioner which does not have a history of placement of its H-1B employees off-site, this is done without legitimate purpose of public interest, which raises constitutional issues of equal protection and due process that may also be reviewed directly by a U.S. Court of Appeals.
A reviewing Circuit Court would likely find revocation in this case was arbitrary and capricious, not based in substantial evidence, and that the de facto USCIS policies involved raise serious issues of error in law along with constitutional questions of equal protection and due process.
. Reviewing Court Would Show Decision No Particular Deference – Power to Revoke Non-immigrant Visa Petition Not Statutory
Unlike revocation of immigrant visas, which is conferred by law, the power of USCIS to revoke a non-immigrant visa petition is not statutory. Therefore, discretion is not assumed, nor is judicial deference owed to revocations carried out under 8 C.F.R. § 214.2(h)(11)(iii). Operating procedures must be carefully crafted to observe due process and essential fairness in such matters. The Third Circuit Court of Appeals has warned:
[W]hile § 1184(a)(1) provides USCIS with the general authority to set conditions for nonimmigrant admission to the United States, the statute does not explicitly confer USCIS with the discretion to revoke nonimmigrant visas. Instead, the rules that explicitly outline USCIS's authority to revoke a nonimmigrant visa are contained within federal regulations. See 8 C.F.R. § 214.2(h). Since the authority to revoke a nonimmigrant visa is not "specified under [§ 1184(a)(1)] to be in the discretion of the Attorney General or Secretary of Homeland Security," the Court must not read such a grant of discretion into the statute.
The extent of discretion and deference shown the agency in such matters of “agency-made law” without statutory basis is limited. Any revocation must be based upon “substantial evidence” or gross error. As the U.S. District Court observed in its consideration of an H-1B revocation decision:
A comprehensive review of 8 U.S.C.S. § 1184(a) clarifies that such discretion as is authorized is limited to the development of regulations regarding the statutorily defined events that may trigger a nonimmigrant's admission and departure. The United States Department of Homeland Security, Citizenship and Immigration Services enjoys no discretion to expand or revise these events, which are restricted to expiration of time allowed in the United States and failure to maintain either admission status or a subsequently acquired immigration status. Similarly, the Department's regulations promulgated under § 1184 condition admission and departure decisions on the occurrence of specified circumstances; they do not leave such decisions to defendant [agency]'s discretion. 8 C.F.R. § 214.2(h)(11)(ii), (iii). In turn, these limits, the specified events and circumstances that constrain the Department's decision-making, give legal standards that trigger federal jurisdiction.
Notice Not Consistent with OI “Clearly Compelling Circumstances” Standard
Careful application of the regulation is not evident in such a notice. The NOIR in question does not observe the normal evidentiary standards guiding initiation of revocation by motion by the Director. The Operations Instructions: OI 205.1, OI 205.2, citing Regulations: 8 CFR 205.1, 205.2, and 205.3, 8 CFR 214.2(h)(8), 8 CFR 214.2(1)(5), 8 CFR 214.2(k), state:
The district director may also reopen or reconsider the approval on his own motion. That step should only be taken where you determine that the petition was improperly approved, automatic termination is not applicable, and there are clearly compelling circumstances such as fraud on the part of the petitioner. . . you are proposing to take something away which the Service has already given.
Spate of Recent Revocations of Immigrant Visa Petitions
Immigration attorneys handling clients in the IT industry are also reporting a “spate of revocations” of I-140 by the Service Centers. A typical report indicates the same sort of problems being encountered in adjudications, including a new double-checking procedure involving follow-up audits of I-140s at the time the Service Center gets around to adjudicating the I-485 LPR filings. A disproportionate percentage of revocations and NOIDS appear to involve Indian nationals working for consulting firms, but it is also a reported problem for Chinese nationals, particularly involving managers and executives in EB-1 AND EB-2, where once an I-140 is denied USCIS then revokes the L-1A. This, in many cases, involves an unreasonable requirement that the petitioner account for an ability to pay all petitions filed in previous years. This presents particular problems for beneficiary’s who worked for companies that are now out of business who seek to port under AC-21. Revocations are often issued in batches for employees of the same employer. The grounds for revocation often cited are “fraud” problems for IT companies described as follows:
- USCIS states it could not verify that this company was in existence and had legitimate job offers;
- USCIS could not verify there was enough work space for all the employees, even though the PERMs and I-140s indicated work sites would be for various unanticipated locations;
- In some cases, USCIS claims the company files multiple more 140 petitions than actually submitted;
- USCIS often requires the petitioner to the show ability to pay wage offered for all of the petitions ever filed, in some cases for filings made some five or more years earlier.
In some cases the beneficiary will respond to the NOIR, but USCIS states only the petitioner can respond, even though the employer has gone out of business. This has occurred even to employees who ported to another employer under AC-21, and USCIS has shut down the original sponsor. This effectively makes it impossible for the affected party to pursue whatever administrative redress and offer evidence in his own behalf.
CIS has taken the position, upheld in the 9th Circuit Herrera case, that portability doesn't apply since the revocation was initiated by USCIS and not the petitioner. This sort of case will encounter issues of standing, jurisdiction and bases for federal litigation. In the Herrera case, originally filed under APA Sec. 706 in US District Court in 2006, the government was awarded summary judgment, and the Circuit accepted jurisdiction under Love Korean Church despite IIRIRA, but denied the appeal on the merits, agreeing with the AAO and the District Court that the original I-140 was invalid as the job lacked managerial nature. The decision of USCIS to revoke the I-140 after the beneficiary changed jobs was reasonable, the courts found, and ACT-21 did not affect the validity of that decision.
. Developing Issues of Application of Neufeld to LCA Compliance and Revocations
RFE and NOIR Standards
The Request for Evidence (RFE) is an administrative safeguard in adjudications, but it is not required by law or regulation. See 8 C.F.R. §§ 103.2(b)(1) ("An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by the application regulations and/or the form's instructions."); 103.2(b)(8)(iii) ("If all required initial evidence is not submitted with the application or petition or does not demonstrate eligibility, USCIS in its discretion may deny the application or petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS."). (3100.)
The current provisions state plainly that the RFE is discretionary, however, the Notice of Intent to Revoke (NOIR) an approved non-immigrant petition is mandated by regulation, and must consider a set of specific preconditions, as set forth at 8 C.F.R. § 214.2(h)(11)(iii), which governs "Revocation on notice,".
Revocation of I-140 Immigrant Visa petitions are accorded significantly lesser procedural protections that non-immigrant petitions, and employ statutory standard at 8 U.S.C. § 1155 that permits the DHS Secretary wide discretionary power to revoke an approved immigrant visa petition “at any time” for “good and sufficient cause”. [[Herrera v. US Citizenship & Imm. Servs., No. 08-55493 (9th Cir., July 6, 2009).] [See, subsection 9(B), above]
 However, the relevant section and standard for revocation of approved Immigrant visa petitions are different than for revocation of H non-immigrant visas. The section that applies to I-140 is found at 8 C.F.R. § 205.2, while revocation of the I-129 is governed by 8 C.F.R. § 214.2(h)(11)(iii). In some ways, the standard applying to non-immigrants appears to afford greater substantial protections than the revocation “at any time” for “good and sufficient cause” for I-140s. Attorneys on the AILA message board have reported a spate of I-140 revocations in recent months.
 See, AILA/VSC Liaison Committee Practice Pointer: Clarification on Revocation of H-1B Status and Non-immigrant Status, AILA InfoNet Doc. No. 09021960 (posted Feb. 19, 2009)"
 See, AILA/VSC Liaison Committee Practice Pointer: VSC Liaison Committee Discusses the VSC's Clarification of Revocation of H-1B Status and Non-immigrant Status, "AILA InfoNet Doc. No. 09022076 (posted Feb. 20, 2009)"
 See, http://www.justice.gov/eoir/vll/intdec/vol19/3029.pdf. Note: While statute has provided a more explicit basis for USCIS to revoke immigrant visas, the essential principle holds true as well for non-immigrant petitions. USCIS would be well-served to reconcile the procedures and practices it specifies for revocation.
 See, Legacy INS Examination’s Handbook, 15-1 Examinations Handbook Revocation*, Part III, Part 15-1. While USCIS has stated it is not bound by the terms of directives and operating instructions issued by legacy INS, this is the clearest publicly available articulation of agency policy on this subject, and it would be expected that USCIS Center Directors would respect the principles articulated.