case sent back to USCIS

CR1 Spouse Visa Case Sent Back To USCIS After Interview?

Imagine this scenario… You and your spouse have waited months for USCIS to review your I-130 petition. Not only have you been separated this entire time but you are nervous about any further delays. But, what happens if CR1 spouse visa case sent back to USCIS after the interview?

This is exactly the scenario that I’ll be discussing today in this post. I’ve had a number of unfortunate couples email me out of desperation recently looking for answers.

Under normal circumstances, the CR1 spouse visa shouldn’t be difficult to get approved after the interview (if you made it that far I mean 👏) So, if your case was straightforward but your CR1 visa was still refused after the interview, there is something strange going on… and we are going to find out!

Here’s a brief background on the process when your case is sent back to USCIS…

The CR1 visa is called a “condition resident” visa and it’s given to spouses of US citizens or lawful permanent residents. You will receive a green card after entering the United States on this visa and will be a condition 2 year LPR.

Before we delve into what could go wrong with the CR1 visa process, let’s take a look at a common type of case and possible issues that may come up.

Case Example:

Lewis is a US citizen who met and married this Filipina wife Emma. After getting married, they submitted form I-130 to USCIS and quickly got approved. Thankfully, they submitted enough evidence of their bona fide marriage. However, when it came time for the interview, Emma thought it went okay but she was confused about a number of questions she was asked.

Once the CR1 visa interview was over, she wasn’t told she was approved. But instead, she was told that her case was in administrative processing. She went home and called Lewis to tell him the bad news. Days later, they check the case status only to find out that the CR1 spouse visa was refused and the case was being sent back to USCIS.

So what exactly happened here? There are a few different reasons why a US consular officer would sent a case back the USICIS and none of them are good. Let’s take a look at the possible reasons why below.

Related Post:  Notice Of Intent To Revoke I-130 or I-129F From USCIS 

Consulate Believes I-130 Petition Should Not Have Been Approved

If during the interview, the consular officer comes to the conclusion that the original I-130 petition should not have been approved by USCIS, they will likely send it back.

This is especially true if the consular officer believes that you were not eligible for the visa to begin with or your petition was approved due to fraud or misrepresentation.

When the approved I-130 petition is returned to USCIS, this is called a “consular return” – then USCIS will review your petition again and make a final decision to confirm the approval or revoke the approved petition.

As you can see, this stuff gets really confusing the more you dig into it. So, in this post, I’m only going to discuss the process for a US citizen petitioning for the beneficiary spouse. Sorry – if you are a green card holder petitioning for your spouse, I may write another post of that situation.

So, why would a consular officer believe that you didn’t qualify for the approved petition in the first place? There are several reasons, some of which I’ve already hinted at above.

According to USCIS there are 5 reasons a petition is returned:

  1. Statutory ineligibility
  2. Request from USCIS (fraud or other reason) – e.g. if marriage fraud is suspected.
  3. Automatic revocation or withdrawal – for instance, when the petitioner has died.
  4. Revocation for “cause”
  5. Incorrect or missing information

To be honest, trying to find out exactly why is mysterious and this can frustrate many couples trying to figure this all out on their own.

The State Department employees must write a memorandum (memo) detailing the reasons for the return of the approved I-130 petition to USCIS. If the memo looks good, the NVC will then send it back to USCIS service center that originally approved the petition for additional review.

Normal processing time for this according to NVC is 15 days as long as no further information is required from you.

Related Podcast: EP14: List of USCIS High Fraud Countries & Low Fraud Countries

USCIS has three options at this point:

Option 1: Find that the petition is not revocable and return the petition to DOS.

Hopefully, the consulate will then approve the visa. 🙌 For example, if USCIS determines there is no marriage fraud and you are eligible, it will reaffirm the petition, return it to the NVC, which then returns it to the consulate. The consulate should not question the bona fides or genuineness of the relationship again unless new evidence is found.

Option 2: Issue a Notice of Intent to Revoke (NOIR) to the petitioner.

USCIS will give you the opportunity to explain why you are eligible for the visa with evidence. If USCIS doesn’t agree with you, they will revoke the petition. Another example is if the consulate finds out about a disqualifying criminal conviction of the U.S. petitioner in a family-based case. Some offenses, especially sexual offenses against a minor, can completely disqualify the petitioner from petitioning any family member

Option 3: Issue a Notice of Automatic Revocation to the petitioner.  

This usually happens if the petitioner has died. The approval of the petition is automatically revoked, but the foreign spouse (the beneficiary) can in most cases request humanitarian reinstatement of the I-130 petition.

It doesn’t matter how long it’s been since the petitioner’s death – months or years, the I-130 petition will be automatically revoked by USCIS. But if the consulate doesn’t learn of the death until the visa interview, it will return the petition to USCIS for revocation at that point.

If your petitioner has died, you should let the government know as soon as possible. It won’t help your case if you wait until the interview because the petition must still be revoked.  Automatic revocation can occur in other cases also, such as when an F2B beneficiary (unmarried child of a green card holder) gets married and no longer qualifies.

Unfortunately, the consular return process can be lengthy!

It will be difficult to know what’s going on with your case and when you’ll receive a final decision from USCIS. You can check your case status on website but this will likely not give you the information you are looking for.

USCIS says that it tries to handle consular returns on a first come, first serve basis. If you receive a Notice of Intent to Revoke (NOIR), you will have 30 days to respond, and USICS tries to respond to the NOIR within 120 days from receipt.

You (as the petitioner) should be sure to keep your address updated with USCIS so that any letter sent will reach you quickly.

Related Post: Waivers for Fraud and Willful Misrepresentation

Reasons for Revocation of Approved I-130 Petition

In cases where USCIS has already approved an immigrant visa petition, the U.S. Department of State (DOS) is the final stop for approval of the actual visa.

However, if a DOS consular officer discovers during the interview that the initial I-130 petition should not hav been approved, or is no longer approvable, your case is sent back to USCIS. If this happens, the returned petition will then be sent with a Memo explaining the reasons the approved petition should be revoked.

Once returned, a USCIS officer will review the petition and DOS’s findings and will do one of the following:

  1. Find the petition is NOT revocable! 🥳 USCIS will return the petition to DOS with an explanation of the decision to revoke the petition. You may then be called for another interview by the consualte.
  2. USCIS will issue a  Notice of Intent to Revoke (NOIR) to the petitioner. 😱
  3. USCIS will issue a Notice of Automatic Revocation to the petitioner. 😱🤬

notice of intent to revoke

What Is Revocation of an Approved Petition?

Interestingly, there are certain circumstances (such as death of the beneficiary or petitioner) where an approved petition is automatically revoked as of the date of approval.

But, this is rare and the more common case for revocation of an approved petition involves receiving an NOIR (notice fo intent to revoke) which gives you 30 days to respond with additional evidence). See 8 CFR 205.2.

The NOIR will tell you the reasons the approved petition should be revoked and will give the petitioner about 30 days to submit evidence to show why the petition should NOT be revoked.

If you fail to respond within this timeframe, your petition will revoked by USCIS. Note that USCIS can grant an extension if you need more time to respond but this is completely at their discretion! 🙄 But you must respond within this deadline asking for the extra time, you can’t be late!

Related Post: Visa Approved, Why Was I Placed On Administrative Processing 221(g)?

USCIS Final Decision on Revocation

Outcome #1: Approved I-130 Reaffirmed by USCIS.

If you’ve done your homework and are able to submit evidence showing you do in fact qualify for the approved petition, then USCIS will send a notice letting your know of their decision to reaffirm the approved I-130 petition.

Next, the petition will be returned to DOS’s National Visa Center (NVC) to be sent to the appropriate consulate with the USCIS letter of reaffirmation along with a copy of the letter of intent to revoke and the petitioner’s response.

The NVC will then forward the petition to the consular office that will handle your case. A consular officer may accept the petition as valid and adjudicate the visa application again or they may present to USCIS new evidence not already submitted. If they submit new evidence, USCIS will determine whether this new evidence supports revocation of the petition…. AGAIN! 😧

Outcome #1: USCIS Revokes The Approved I-130 Petition.

If you cannot overcome the basis for the revocation, or fails to respond timely, a decision of revocation will be issued to you (the petitioner) on Form I-292.

You may then file an appeal on a decision to revoke a petition just as if the petition had been denied originally. All appeals to the Board of Immigration Appeals (BIA), including appeals to revocations, must be filed within 30 days and revocation appeals that are submitted to the AAO must be filed within 15 days. Most courts have determined that a final decision by USCIS to revoke an immigrant visa petition is not reviewable.

Don’t try to do this alone! I highly recommend hiring an experienced attorney to help you appeal the revocation.

Related Post: I-130 Petitioner’s Criminal Record & How It Affects Your Case

What The beneficiary Should Expect During Consular Return

As the beneficiary, you can expect the consular officer will tell you that the CR1 visa application is denied or refused (temporary refusal of immigrant visa), pending USCIS review of the returned petition. They may also deny the visa on another basis, it’s really up to their discretion.

If USCIS later reaffirms the I-130 petition as valid,USCIS will send the petition back to DOS who will then adjudicate your visa application once more. The consular officer can either approve the CR1 visa or deny it based on new evidence. Then the process of revocation begins all over again! 😳

Basically, this entire process is a huge waiting game with a lot of twists and turns. Hopefully, you will not deal with this but then again, if you are reading this post it means that you are dealing with it and I’m sorry!

Related Post: CR1 Visa Denial: Couple Denied Visa After Waiting 2 Years

Conclusion: CR1 Visa Case Sent Back To USCIS

Finally, if your case sent back to USCIS for review, don’t panic. There is still a good chance that your CR1 visa is approved but it will take longer to get the final decision.

Ultimately, it will depend on the reason the consular officer has sent case back to USCIS. But you can certainly overcome this by submitting the evidence the USCIS will need to confirm that you are eligible for the petition to stay approved.

Best case scenario would be that the petition is reaffirmed by USCIS, sent back to DOS and the CR1 visa is approved. 😁

However, if USCIS decides that after review, the petition should be revoked you will receive a NOIR and will need to respond quickly to try to fight back. It’s best to consulate and attorney at this point who will help you understand the process better.

Of course, fighting USCIS can sometimes be a losing battle so if you’d rather just reapply for the CR1 visa and correct whatever the reason was for DOS to return the petition, that might be the safer bet. 👍

Ready to file a new I-130 and CR1 visa application correctly? Check out the Migrant Academy CR1 Spouse Visa Course. It’s an interactive, step-by-step online course program that will show you exactly how to put together a strong spouse visa application that gets approved. Join today to get the help you need!

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