DOS Thinks, Therefore I Am?! How the Department of State Has Been Acting Ultra Vires with Family-Based I-130 Petitions by Making Definitive 6C Findings that the Underlying Familial Relationship Does Not Exist and then Refusing the Visa Application Under INA 212(a)(6)(C)(i) Instead of 221(g)

by Nathan J. Chan

“Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.”

  • S. Attorney General Robert F. Kennedy, citing the Presidential Commission on Immigration and Naturalization’s 1953 report[1] titled “Whom We Shall Welcome”

For years, the Department of State (DOS) put this quote in its Foreign Affairs Manual (FAM) as the guiding principle for the section on inadmissibility due to fraud or willful misrepresentation[2]—commonly known as “6C inadmissibility.” As the FAM would then elaborate, “In applying the provisions of INA 212(a)(6)(C)(i), keep in mind the severe nature of the penalty the alien incurs: lifetime inadmissibility . . . .”[3]

Yet in a spate of denials of spousal immigrant visa applications over the past few years, DOS in some Asian countries has been making findings that married couples materially misrepresented the bona fides of their spousal relationships—commonly known as “6C findings” (also “definitive” or “hard” 6C findings)—before denying these applications under INA § 212(a)(6)(C)(i). This goes against a special FAM provision—in effect since at least 2001—that specifically applies only to family-based petitions, not to employment-based petitions.[4] Paragraph (a) of 9 FAM 302.9-4(B)(8)[5] states,

Misrepresentations in Family Relationship Petitions: USCIS retains exclusive authority to deny or revoke family-relationship immigrant visa (IV) petitions. Thus, a misrepresentation with respect to entitlement to the classification based on the relationship, e.g., a sham marriage in an IR-1 case, cannot be deemed material if the petition remains valid. Upon discovery of a misrepresentation, you must return the petition to . . . USCIS . . . . If the petition is revoked [by USCIS], the materiality of the misrepresentation is established. In some cases, the relationship and petition may still be valid, but the [alien] may misrepresent eligibility for the classification in a different way that is not relevant to the petition’s validity, in those cases, you [the consular officer] retain the authority to make an INA 212(a)(6)(C)(i) determination.[6]

DOS’s recent denials under INA § 212(a)(6)(C)(i) also depart from the expected and theretofore-standard procedure outlined to beneficiaries on USCIS’s current website: “When a consular officer returns an immigrant visa petition to USCIS for reconsideration and possible revocation, he or she will typically deny the visa application on the basis of INA section 221(g) (temporary refusal of immigrant visa), pending USCIS review of the returned petition.”[7]

In other words, when adjudicating visa applications for either immediate relatives under INA § 201(b)(2)(a)(i) and other family members enumerated under INA § 203(a), DOS has started exerting some professed authority to make a definitive 6C finding that the beneficiary does not in fact have the required relationship with the petitioner—as another example, that there is no blood relationship with a purportedly consanguineous parent, child, or sibling beneficiary. But as acknowledged in the FAM provision above, DOS only has the authority to make definitive 6C findings on some non-relationship aspect of a case—for example, that the petitioner misled post about their ability to financially support the beneficiary, or maybe even that an unmarried-child beneficiary hid their existing legal marriage.

Confusingly, DOS has still been returning these petitions back to USCIS recommending revocation despite already having effectively revoked the petition with the definitive 6C finding that the underlying familial relationship does not exist. Since only the agency that made a 6C finding can remove it,[8] even a subsequent petition approved by USCIS for the same petitioner and beneficiary does not guarantee that DOS will remove its prior finding and issue the visa.[9]

Even more confusingly, DOS has also been indicating on the refusal letters that these beneficiaries are eligible for a waiver of inadmissibility. Even though an extreme-hardship waiver under INA § 212(i) is generally available for spouse or child beneficiaries to bypass 6C findings,[10] it does not make sense that such beneficiaries can get a family-sponsored immigrant visa after DOS has determined conclusively that the required spousal or parent-child relationship does not exist.

There are two main problems with DOS’s recent practice. First, DOS substitutes its own unilateral, on-the-spot judgment (during the consular interview) for USCIS’s expert judgment reached after months of close re-examination and including the petitioner’s input in response to a Notice of Intent to Revoke (NOIR). As Secretary of State Colin Powell once instructed posts about the level of expertise required to make determinations on eligibility,

The FAM often only summarizes the petition approval criteria because they are too lengthy and complicated to reproduce fully . . . . Absent access to the full DHS regulations, conoffs may not be aware of all of the factors considered by DHS in approving a petition. In addition, conoffs are normally less knowledgeable about the basis for petition eligibility than DHS personnel; they therefore should not jump to conclusions regarding petitions.[11]

Second, there are more meaningful remedies available for refusals under INA § 221(g) than under § 212(a)(6)(C)(i). The latter refusals cannot be overcome/reopened at the post level with new evidence[12]—unlike “non-permanent” inadmissibilities such as public charge[13] or medical grounds[14]—especially when posts are not required to give (and often consciously withhold)[15] the specific factual basis for refusal.[16] And such refusals cannot be appealed because the Board of Immigration Appeals (BIA) does not have jurisdiction over DOS’s decisions[17] and the doctrine of consular non-reviewability generally precludes judicial review.[18]

Therefore, the only two avenues for redressing refusals under INA § 212(a)(6)(C)(i) are advisory opinions from the Visa Office (VO) and extreme-hardship waivers from USCIS. However, while advisory opinions are binding on a consular officer, they only answer pure questions of law and therefore neither correct/avoid mistakes of fact nor dictate how a consular officer must apply the law to the facts.[19] Also, advisory opinions are time-consuming, and the VO might not be completely impartial anyway since it is part of DOS. As for waivers, notwithstanding the irrationality of seeking them in this specific situation, they are far from guaranteed because the applicant must have a qualifying U.S. citizen/LPR relative[20] and also meet the very high standard of “extreme hardship.”[21] And even then, approval is completely discretionary,[22] and denials are not subject to BIA appeal[23] or judicial review.[24]

On the other hand, refusals under INA § 221(g)—while no waiver is available[25]—can be overcome at post with new evidence, advisory opinions, and new petitions approved or returned petitions reaffirmed by USCIS.[26] But most importantly, the petitioner has two official opportunities to rebut DOS’s position with other agencies before a 6C finding is established—first in response to an NOIR from USCIS, and then again on appeal of a USCIS revocation before the Department of Justice’s BIA.[27]

So aside from the apparent unfamiliarity of some interviewing and refusal-reviewing consular officers[28] with the controlling FAM provision above, what is causing DOS to deny visa applications illogically under INA § 212(a)(6)(C)(i) instead of § 221(g)?

DOS’s recent practice probably stems from a common, engrained misconception about the I-130 petition—that the benefit requested via the petition is the immigrant visa. However, as the Author has analyzed in detail in a previous Article,[29] the I-130 petition’s purpose is distinct from the visa’s and is quite simple: to confirm the petitioner’s standing as a U.S. citizen/LPR and to classify/qualify the beneficiary as the petitioner’s relative by establishing their relationship.[30] Even though an approved I-130 petition is required for an immigrant-visa application to be approved,[31] each of these approval processes is a separate immigration benefit at a separate step in the overall immigration process.[32] DOS only adjudicates the immigrant visa application, not the I-130 petition.

For the I-130 petition step, it is well-settled—including in DOS sources[33]—that USCIS/DHS has the exclusive authority to decide whether a family-based petition should be reaffirmed/revoked (and approved/denied)[34]—which depends on, inter alia, whether the underlying familial relationship is bona fide.[35] Otherwise, USCIS/DHS has only delegated authority to DOS to approve “clearly approvable” I-130 petitions in limited circumstances necessitating direct consular filing[36]—namely (1) immediate-relative petitioners with exceptional circumstances requiring immediate processing,[37] (2) temporary blanket authorization as determined by USCIS,[38] and (3) U.S. citizen military service members stationed overseas.[39]

Aside from those limited circumstances, it is well-settled—primarily in DOS sources—that DOS only has a subordinate role regarding approved I-130 petitions when adjudicating visa applications: to merely verify, not readjudicate, USCIS’s determination of the beneficiary’s eligibility for the applicable immigrant classification/status.[40] Even if DOS discovers new substantial evidence that the beneficiary is ineligible—often due to its local experience in and familiarity with the beneficiary’s country[41]—it is well-settled—again, primarily in DOS sources—that DOS only has the limited role of presenting such evidence to USCIS when returning the petition for reconsideration.[42] According to the FAM, even confessions or other clear evidence of fraud or willful misrepresentation in the underlying relationship do not give DOS any authority over petitions beyond suspending action and returning them to USCIS for reconsideration.[43]

Therefore, DOS must return to the proper procedure for adjudicating visa applications involving fraud or willful misrepresentation in family-based petitions:

  1. If DOS discovers new evidence such that it knows or has reason to believe that the beneficiary is ineligible for the applicable family immigrant classification/status because the underlying relationship does not exist, the visa should be refused under INA § 221(g) and the petition returned to USCIS for review. Since every properly filed visa application must be either approved or denied,[44] 221(g) is the appropriate provision for denial pending reconsideration by USCIS (absent other grounds of inadmissibility of course).[45]
  2. If the new evidence also indicates that the beneficiary has or may have made a willful misrepresentation concerning the familial relationship, a provisional 6C finding—commonly known as a “P6C finding”—should be made.[46] Since in this situation DOS cannot make a definitive 6C finding necessary to deny the visa under INA § 212(a)(6)(C)(i), a P6C finding ensures that the beneficiary doesn’t disappear off the immigration radar by alerting future USCIS/consular officers that the potential inadmissibility exists and that USCIS is reconsidering the matter. Since such a finding is not binding,[47] the beneficiary can overcome it later with new evidence or a petition newly approved/reaffirmed by USCIS. And even though such findings are “quasi-refusals” and not actual hard refusals,[48] INA § 221(g) provides the required official decision.[49]

While the proper procedure may not be perfect,[50] it is a much fairer and much less arbitrary way of establishing 6C inadmissibility. Surely this much procedural due process is owed to U.S. citizens/LPRs before “destroy[ing] the hopes and aspirations of a lifetime” of their qualifying relatives.

[1] Matter of S- and B-C-, 9 I. & N. Dec. 436, 446 (A.G. 1961).

[2]E.g., 9 FAM 40.63 N1.3 (2010), available at https://www.hooyou.com/nonimmigration/9%20FAM%2040.63%20Notes.pdf.

[3]E.g., id.

[4] 9 FAM 40.63 N10.1 (2001), available at https://web.archive.org/web/20070817...tion/87011.pdf. In the earliest available versions of this provision, DOS distinguished between family-based petitions—which only USCIS/DHS can revoke after it finds fraud or willful misrepresentation in the previously established familial relationship—and employment-based petitions—which are automatically revoked upon findings of fraud or willful misrepresentation in labor certifications, e.g., id.—findings that DOS also has the regulatory authority to make, 20 C.F.R. §§ 656.30(d), 656.31(e). More generally, DOS might have explicitly singled out family-based petitions for different treatment since one of the fundamental goals of the INA is family reunification. H.R. Conf. Rep. No. 82-1365, at 24, 29 (1952); H.R. Conf. Rep. No. 85-1199, at 7 (1957); Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977); U.S. Citizenship & Immigration Servs., Policy Memorandum PM-602-0017—Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, at 15 (Dec. 16, 2010).

Another example of the INA favoring family-based petitions over employment-based petitions is how the death of the petitioner does not necessarily spell the end of a family-based petition that was previously approved, see 8 C.F.R. § 205.1(a)—or in some cases even of a family-based petition that is pending approval, see 8 U.S.C. § 1154(l). See USCIS Adjudicator’s Field Manual § 10.21(c)(7), available at https://web.archive.org/web/20190823...pter10-21.html (since superseded by the USCIS Policy Manual).

[5] Even though the FAM is of course not binding on DOS officers, it serves as the agency’s policy and procedural guidance for its officers in the adjudication of visas. 9 FAM 101.1-1, -2(b), -3(b).

[6]See also Colin Powell, U.S. Dep’t of State, Cable No. 041682—SOP 61: Guidelines and Changes for Returning DHS/BCIS Approved IV and NIV Petitions para. 13 (Feb. 25, 2004); Gov’t Liaison Comm., AILA Bangkok Dist. Chapter, AILA Bangkok District Chapter Government Liaison Committee Agenda for Liaison Meeting with Consular Section at U.S. Consulate in Ho Chi Minh City, Vietnam on March 8, 2017, at 13 (2017) (AILA Doc. No. 17080137) [hereinafter HCMC Liaison 2017]; Gov’t Liaison Comm., AILA Bangkok Dist. Chapter, AILA Bangkok District Chapter Government Liaison Committee Agenda for Liaison Meeting with Consular Section at U.S. Embassy in Phnom Penh, Cambodia on December 16, 2016, at 4 (2016) (AILA Doc. No. 17080200) [hereinafter Phnom Penh Liaison 2016].

[7]Immigrant Visa Petitions Returned by the State Department Consular Offices, USCIS.gov, https://www.uscis.gov/forms/immigran...nsular-offices (last updated July 15, 2011); Gary Chodorow, U.S. Visa Denied? Here are Your Options, Chodorow Immigr. L. (Nov. 28, 2017), https://lawandborder.com/options-after-visa-denial/.

[8]E.g., HCMC Liaison 2017, supra note 6.

[9]E.g., Gov’t Liaison Comm., AILA Bangkok Dist. Chapter, AILA Bangkok District Chapter Government Liaison Committee Agenda for Liaison Meeting with Consular Section at U.S. Embassy in Manila, Philippines on April 7, 2017, at 11 (2017) (AILA Doc. No. 17080296) [hereinafter Manila Liaison 2017]; Phnom Penh Liaison 2016, supra note 6. In fact, USCIS must approve petitions for eligible beneficiaries even if the beneficiaries are inadmissible. Matter of O-, 8 I. & N. Dec. 295, 297 (BIA 1959); USCIS Adjudicator’s Field Manual §§ 21.2(d), (g)(2), available at https://web.archive.org/web/20190612...-0-0-3513.html (since superseded by the USCIS Policy Manual); USCIS Operations Instructions § 204.6, available at https://books.google.com.kh/books?id...p;pg=RA4-PP15; 9 FAM 504.2-3(C).

[10] 8 U.S.C. §§ 1182(a)(6)(C)(iii), 1182(i). For the purposes of this Article, the Author assumes that the only U.S.-citizen/LPR relative who might suffer extreme hardship from the beneficiary’s inadmissibility is the spouse or parent petitioner.

[11] Powell, supra note 6, para. 8.

[12] In one such case, the post declared in an email that it “will not accept any further evidence or appeal regarding this denied visa application.”

[13]See 9 FAM 504.11-4(A)(a)-(b).

[14]Cf. 9 FAM 40.6 N3.1(b) (2015), available at https://web.archive.org/web/20151014091506/http://www.state.gov/documents/organization/86932.pdf.

[15]Cf. Nathan J. Chan, A Shield Not a Sword: The Perverse Use of “Confidentiality of DOS Records Under INA 222(f)” to Withhold the Factual Basis for 221(g) Denials from Spousal I-130 Beneficiaries, May 2018 AILA Bangkok District Chapter Newsl. 6 (AILA Doc. No. 18051030).

[16] 9 FAM 504.11-3(A)(1)(b), (d), 403.10-3(A)(3)(c).

[17] 8 C.F.R. § 1003.1(b).

[18] Kerry v. Din, 576 U.S. 86 (2015) (plurality); Knauff v. Shaughnessy, 338 U.S. 537 (1950).

[19] Chodorow, supra note 7.

[20] 8 U.S.C. § 1182(i)(1); USCIS Policy Manual § 9(B)(4).

[21] USCIS Policy Manual § 9(B)(5)(B).

[22] 8 U.S.C. § 1182(i)(1); USCIS Policy Manual § 9(B)(7).

[23]See 8 C.F.R. § 1003.1(b).

[24] 8 U.S.C. § 1182(i)(2).

[25] 8 U.S.C. § 1201(g); 9 FAM 504.11-4(B).

[26] 22 C.F.R. § 42.81(e); 9 FAM 504.11-3(A)(2)(a)(2), -4(A)(a); 9 FAM 40.6 N4.1(c) (2014), available at https://web.archive.org/web/20151014...ion/86932.pdf; see 9 FAM 504.11-3(B)(2)(a); 9 FAM 40.6 N1(d) (2011), available at https://web.archive.org/web/20151014...ion/86932.pdf; Manila Liaison 2017, supra note 9; Immigrant Visa Petitions Returned by the State Department Consular Offices, supra note 7; cf. 9 FAM 302.8-2(B)(3)(1), (C), 403.10-3(A)(2)(2)(b), (A)(5), (B), -4(A)(b), (B), 504.9-7. Compare 9 FAM 504.11-3(A)(1)(e)(1)(c)(i), and 9 FAM 403.10-3(A)(2)(2)(d), with 9 FAM 504.11-3(A)(1)(d)(1), and 9 FAM 403.10-3(A)(3)(a)-(b), and 9 FAM 403.10-3(A)(2)(3).

[27] 8 C.F.R. §§ 205.2(d), 1003.1(b)(5).

[28] 22 C.F.R. § 42.81(c); 9 FAM 504.11-3(A)(2).

[29] Nathan J. Chan, He Loves Me . . . He Loves Me Not Anymore?! How the Bona Fides of a Marriage for an Approved Spousal Petition Can Depend on Whether the Burden of Proof in Revocation Proceedings Under INA § 205 Is on USCIS or the Petitioner, 2 AILA L. J. 191 (2020) (AILA Doc. No. 19110103).

[30] 8 C.F.R. § 204.2(h)(1); Matter of O-, 8 I. & N. Dec. 295, 297 (BIA 1959); USCIS Adjudicator’s Field Manual §§ 21.2(c), (g)(2), supra note 9 (since superseded by the USCIS Policy Manual); U.S. Citizenship & Immigration Servs., Instructions for Form I-130, Petition for Alien Relative, and Form I-130A, Supplemental Information for Spouse Beneficiary 1 (Feb. 13, 2019 version); 9 FAM 504.2-2(B), .6-6(A)(b).

[31] USCIS Policy Manual § 6(B)(1)(A); 9 FAM 102.1-2, 504.2-2(A)(a), 602.2-2(B)(2)(a); Immigrant Visa Petitions Returned by the State Department Consular Offices, supra note 7; Immigrant Visa Process—Step 1: Submit a Petition, Travel.State.gov, https://travel.state.gov/content/tra...-petition.html (last visited Oct. 7, 2021).

[32] Chan, supra note 29, at 197-99; cf., Our Fees, USCIS.gov, https://www.uscis.gov/forms/our-fees (last updated July 31, 2020) (since superseded) (listing the I-130 petition and I-485 adjustment-of-status application as separate “Immigration Benefit Request[s]&rdquo.

[33] 9 FAM 102.1-2, 302.9-4(B)(8)(a), 504.2-8(A)(a), (B)(4)(b), 602.2-2(A)(1)(c)(1), (B)(2)(a); Powell, supra note 6, para. 7; Immigrant Visa Process—Step 1: Submit a Petition, supra note 31.

[34] 6 U.S.C. § 271(b)(1); Department of Homeland Security, Delegation No. 0150.1 to the Bureau of Citizenship and Immigration Services (June 5, 2003), § II(W); 8 U.S.C. §§ 1154(a)-(b), 1155; 8 C.F.R. § 205.2(a); USCIS Policy Manual § 1(E)(1)(A) (last updated Oct. 1, 2021); USCIS Adjudicator’s Field Manual § 21.2(a)(1), supra note 9 (since superseded by the USCIS Policy Manual).

[35]See supra note 30.

[36] 9 FAM 504.2-4(a)-(b).

[37] USCIS Policy Manual § 6(B)(3)(A); U.S. Citizenship & Immigration Servs., Policy Alert PA-2020-03—Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020) [hereinafter Policy Alert PA-2020-03]; U.S. Citizenship & Immigration Servs., Policy Memorandum PM-602-0043.1—Process for Responding to Requests by the Department of State (DOS) to Accept a Locally Filed Form I-130, Petition for Alien Relative (May 14, 2012) [hereinafter Policy Memorandum PM-602-0043.1]; 9 FAM 504.2-4(A)(a)(3), (B)(1)(b).

[38] USCIS Policy Manual § 6(B)(3)(C); Policy Alert PA-2020-03, supra note 37; Policy Memorandum PM-602-0043.1, supra note 37; 9 FAM 504.2-4(B)(1)(c).

[39] 9 FAM 504.2-4(A)(a)(4), (B)(1)(d).

[40] 9 FAM 301.3-2(c), 302.9-4(B)(8)(a), 504.2-2(B), -8(A)(a)-(b); Powell, supra note 6, paras. 6-7; Colin Powell, U.S. Dep’t of State, Cable No. 121801—Guidance on Petition Revocations paras. 3, 6 (July 13, 2001); U.S. Dep’t of State, DOS Cable on Petitions Returned to INS by Post para. 2 (Apr. 1, 1995); USCIS Operations Instructions § 204.5(d)(2), available at https://books.google.com.kh/books?id=i_YDOwmJ-CwC&pg=RA4-PP12.

[41] 9 FAM 504.2-2(B).

[42] 22 C.F.R. § 42.43(a); 9 FAM 302.9-4(B)(8)(a), 504.2-2(B), -8(A)(a)-(b); Powell, supra note 6, paras. 6-7; Powell, supra note 40; U.S. Dep’t of State, supra note 40; USCIS Operations Instructions, supra note 40.

If DOS does not know or have any reason to believe that the beneficiary is ineligible for the applicable family-immigrant classification/status, it is well-settled—including in DOS sources—that DOS only has the ministerial role of issuing visas to overseas beneficiaries. 6 U.S.C. § 236(b)(1); 8 U.S.C. §§ 1101(a)(16), 1154(b), 1201(a)(1)(A); 22 C.F.R. § 42.41; 9 FAM 504.2-8(C)(1)(A); Powell, supra note 6, para. 7; Powell, supra note 40, para. 6; U.S. Dep’t of State, supra note 40, para. 3. This is of course assuming that DOS has determined, as one of its primary duties, that none of the grounds of inadmissibility under INA § 212(a) apply to the beneficiary. But this is a general duty not specific to the immigration process since this also applies to nonimmigrant-visa applicants. See 8 U.S.C. §§ 1201(g), 1361. And even then, as discussed, DOS cannot make definitive 6C findings of inadmissibility that refute the familial relationship underlying an approved I-130 petition.

[43] 9 FAM 504.2-8(A)(2)(5), (B)(2)(b).

[44] 22 C.F.R. § 42.81(a); 9 FAM 504.9-2, .11-2(A)(a); 9 FAM 40.6 N1(c)(2) (2011), available at https://web.archive.org/web/20151014...ion/86932.pdf; cf. 9 FAM 403.10-2(A)(a).

[45]See 22 C.F.R. § 42.81(a).

[46] 9 FAM 40.6 N1(c)(2), N3.4(a) (2011), available at https://web.archive.org/web/20151014...ion/86932.pdf; Powell, supra note 6; Phnom Penh Liaison 2016, supra note 6; cf. 9 FAM 40.6 N1(b), N3.4(c).

[47]See 9 FAM 302.9-4(B)(6) (2017), available at https://web.archive.org/web/20180326...AM030209.html; 9 FAM 40.6 N3.4(a)-(c) (2011), available at https://web.archive.org/web/20151014091506/http://www.state.gov/documents/organization/86932.pdf.

[48] 9 FAM 40.6 N1(b), (c)(2) (2011), available at https://web.archive.org/web/20151014091506/http://www.state.gov/documents/organization/86932.pdf.

[49]See 22 C.F.R. § 42.81(a).

[50]See Marc Ellis, P6C – Department of State’s War on Love, Logic and Law, ILW.com (July 13, 2010), https://www.ilw.com/articles/2010,0713-Ellis.shtm.

 Matter of S- and B-C-, 9 I. & N. Dec. 436, 446 (A.G. 1961).

[1] E.g., 9 FAM 40.63 N1.3 (2010), available at https://www.hooyou.com/nonimmigration/9%20FAM%2040.63%20Notes.pdf.

[1] E.g., id.

[1] 9 FAM 40.63 N10.1 (2001), available at https://web.archive.org/web/20070817...tion/87011.pdf. In the earliest available versions of this provision, DOS distinguished between family-based petitions—which only USCIS/DHS can revoke after it finds fraud or willful misrepresentation in the previously established familial relationship—and employment-based petitions—which are automatically revoked upon findings of fraud or willful misrepresentation in labor certifications, e.g., id.—findings that DOS also has the regulatory authority to make, 20 C.F.R. §§ 656.30(d), 656.31(e). More generally, DOS might have explicitly singled out family-based petitions for different treatment since one of the fundamental goals of the INA is family reunification. H.R. Conf. Rep. No. 82-1365, at 24, 29 (1952); H.R. Conf. Rep. No. 85-1199, at 7 (1957); Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977); U.S. Citizenship & Immigration Servs., Policy Memorandum PM-602-0017—Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, at 15 (Dec. 16, 2010).

Another example of the INA favoring family-based petitions over employment-based petitions is how the death of the petitioner does not necessarily spell the end of a family-based petition that was previously approved, see 8 C.F.R. § 205.1(a)—or in some cases even of a family-based petition that is pending approval, see 8 U.S.C. § 1154(l). See USCIS Adjudicator’s Field Manual § 10.21(c)(7), available at https://web.archive.org/web/20190823...pter10-21.html (since superseded by the USCIS Policy Manual).

[1] Even though the FAM is of course not binding on DOS officers, it serves as the agency’s policy and procedural guidance for its officers in the adjudication of visas. 9 FAM 101.1-1, -2(b), -3(b).

[1] See also Colin Powell, U.S. Dep’t of State, Cable No. 041682—SOP 61: Guidelines and Changes for Returning DHS/BCIS Approved IV and NIV Petitions para. 13 (Feb. 25, 2004); Gov’t Liaison Comm., AILA Bangkok Dist. Chapter, AILA Bangkok District Chapter Government Liaison Committee Agenda for Liaison Meeting with Consular Section at U.S. Consulate in Ho Chi Minh City, Vietnam on March 8, 2017, at 13 (2017) (AILA Doc. No. 17080137) [hereinafter HCMC Liaison 2017]; Gov’t Liaison Comm., AILA Bangkok Dist. Chapter, AILA Bangkok District Chapter Government Liaison Committee Agenda for Liaison Meeting with Consular Section at U.S. Embassy in Phnom Penh, Cambodia on December 16, 2016, at 4 (2016) (AILA Doc. No. 17080200) [hereinafter Phnom Penh Liaison 2016].

[1] Immigrant Visa Petitions Returned by the State Department Consular Offices, USCIS.gov, https://www.uscis.gov/forms/immigran...nsular-offices (last updated July 15, 2011); Gary Chodorow, U.S. Visa Denied? Here are Your Options, Chodorow Immigr. L. (Nov. 28, 2017), https://lawandborder.com/options-after-visa-denial/.

[1] E.g., HCMC Liaison 2017, supra note 6.

[1] E.g., Gov’t Liaison Comm., AILA Bangkok Dist. Chapter, AILA Bangkok District Chapter Government Liaison Committee Agenda for Liaison Meeting with Consular Section at U.S. Embassy in Manila, Philippines on April 7, 2017, at 11 (2017) (AILA Doc. No. 17080296) [hereinafter Manila Liaison 2017]; Phnom Penh Liaison 2016, supra note 6. In fact, USCIS must approve petitions for eligible beneficiaries even if the beneficiaries are inadmissible. Matter of O-, 8 I. & N. Dec. 295, 297 (BIA 1959); USCIS Adjudicator’s Field Manual §§ 21.2(d), (g)(2), available at https://web.archive.org/web/20190612...-0-0-3513.html (since superseded by the USCIS Policy Manual); USCIS Operations Instructions § 204.6, available at https://books.google.com.kh/books?id...p;pg=RA4-PP15; 9 FAM 504.2-3(C).

[1] 8 U.S.C. §§ 1182(a)(6)(C)(iii), 1182(i). For the purposes of this Article, the Author assumes that the only U.S.-citizen/LPR relative who might suffer extreme hardship from the beneficiary’s inadmissibility is the spouse or parent petitioner.

[1] Powell, supra note 6, para. 8.

[1] In one such case, the post declared in an email that it “will not accept any further evidence or appeal regarding this denied visa application.”

[1] See 9 FAM 504.11-4(A)(a)-(b).

[1] Cf. 9 FAM 40.6 N3.1(b) (2015), available at https://web.archive.org/web/20151014091506/http://www.state.gov/documents/organization/86932.pdf.

[1] Cf. Nathan J. Chan, A Shield Not a Sword: The Perverse Use of “Confidentiality of DOS Records Under INA 222(f)” to Withhold the Factual Basis for 221(g) Denials from Spousal I-130 Beneficiaries, May 2018 AILA Bangkok District Chapter Newsl. 6 (AILA Doc. No. 18051030).

[1] 9 FAM 504.11-3(A)(1)(b), (d), 403.10-3(A)(3)(c).

[1] 8 C.F.R. § 1003.1(b).

[1] Kerry v. Din, 576 U.S. 86 (2015) (plurality); Knauff v. Shaughnessy, 338 U.S. 537 (1950).

[1] Chodorow, supra note 7.

[1] 8 U.S.C. § 1182(i)(1); USCIS Policy Manual § 9(B)(4).

[1] USCIS Policy Manual § 9(B)(5)(B).

[1] 8 U.S.C. § 1182(i)(1); USCIS Policy Manual § 9(B)(7).

[1] See 8 C.F.R. § 1003.1(b).

[1] 8 U.S.C. § 1182(i)(2).

[1] 8 U.S.C. § 1201(g); 9 FAM 504.11-4(B).

[1] 22 C.F.R. § 42.81(e); 9 FAM 504.11-3(A)(2)(a)(2), -4(A)(a); 9 FAM 40.6 N4.1(c) (2014), available at https://web.archive.org/web/20151014...ion/86932.pdf; see 9 FAM 504.11-3(B)(2)(a); 9 FAM 40.6 N1(d) (2011), available at https://web.archive.org/web/20151014...ion/86932.pdf; Manila Liaison 2017, supra note 9; Immigrant Visa Petitions Returned by the State Department Consular Offices, supra note 7; cf. 9 FAM 302.8-2(B)(3)(1), (C), 403.10-3(A)(2)(2)(b), (A)(5), (B), -4(A)(b), (B), 504.9-7. Compare 9 FAM 504.11-3(A)(1)(e)(1)(c)(i), and 9 FAM 403.10-3(A)(2)(2)(d), with 9 FAM 504.11-3(A)(1)(d)(1), and 9 FAM 403.10-3(A)(3)(a)-(b), and 9 FAM 403.10-3(A)(2)(3).

[1] 8 C.F.R. §§ 205.2(d), 1003.1(b)(5).

[1] 22 C.F.R. § 42.81(c); 9 FAM 504.11-3(A)(2).

[1] Nathan J. Chan, He Loves Me . . . He Loves Me Not Anymore?! How the Bona Fides of a Marriage for an Approved Spousal Petition Can Depend on Whether the Burden of Proof in Revocation Proceedings Under INA § 205 Is on USCIS or the Petitioner, 2 AILA L. J. 191 (2020) (AILA Doc. No. 19110103).

[1] 8 C.F.R. § 204.2(h)(1); Matter of O-, 8 I. & N. Dec. 295, 297 (BIA 1959); USCIS Adjudicator’s Field Manual §§ 21.2(c), (g)(2), supra note 9 (since superseded by the USCIS Policy Manual); U.S. Citizenship & Immigration Servs., Instructions for Form I-130, Petition for Alien Relative, and Form I-130A, Supplemental Information for Spouse Beneficiary 1 (Feb. 13, 2019 version); 9 FAM 504.2-2(B), .6-6(A)(b).

[1] USCIS Policy Manual § 6(B)(1)(A); 9 FAM 102.1-2, 504.2-2(A)(a), 602.2-2(B)(2)(a); Immigrant Visa Petitions Returned by the State Department Consular Offices, supra note 7; Immigrant Visa Process—Step 1: Submit a Petition, Travel.State.gov, https://travel.state.gov/content/tra...-petition.html (last visited Oct. 7, 2021).

[1] Chan, supra note 29, at 197-99; cf., Our Fees, USCIS.gov, https://www.uscis.gov/forms/our-fees (last updated July 31, 2020) (since superseded) (listing the I-130 petition and I-485 adjustment-of-status application as separate “Immigration Benefit Request[s]&rdquo.

[1] 9 FAM 102.1-2, 302.9-4(B)(8)(a), 504.2-8(A)(a), (B)(4)(b), 602.2-2(A)(1)(c)(1), (B)(2)(a); Powell, supra note 6, para. 7; Immigrant Visa Process—Step 1: Submit a Petition, supra note 31.

[1] 6 U.S.C. § 271(b)(1); Department of Homeland Security, Delegation No. 0150.1 to the Bureau of Citizenship and Immigration Services (June 5, 2003), § II(W); 8 U.S.C. §§ 1154(a)-(b), 1155; 8 C.F.R. § 205.2(a); USCIS Policy Manual § 1(E)(1)(A) (last updated Oct. 1, 2021); USCIS Adjudicator’s Field Manual § 21.2(a)(1), supra note 9 (since superseded by the USCIS Policy Manual).

[1] See supra note 30.

[1] 9 FAM 504.2-4(a)-(b).

[1] USCIS Policy Manual § 6(B)(3)(A); U.S. Citizenship & Immigration Servs., Policy Alert PA-2020-03—Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020) [hereinafter Policy Alert PA-2020-03]; U.S. Citizenship & Immigration Servs., Policy Memorandum PM-602-0043.1—Process for Responding to Requests by the Department of State (DOS) to Accept a Locally Filed Form I-130, Petition for Alien Relative (May 14, 2012) [hereinafter Policy Memorandum PM-602-0043.1]; 9 FAM 504.2-4(A)(a)(3), (B)(1)(b).

[1] USCIS Policy Manual § 6(B)(3)(C); Policy Alert PA-2020-03, supra note 37; Policy Memorandum PM-602-0043.1, supra note 37; 9 FAM 504.2-4(B)(1)(c).

[1] 9 FAM 504.2-4(A)(a)(4), (B)(1)(d).

[1] 9 FAM 301.3-2(c), 302.9-4(B)(8)(a), 504.2-2(B), -8(A)(a)-(b); Powell, supra note 6, paras. 6-7; Colin Powell, U.S. Dep’t of State, Cable No. 121801—Guidance on Petition Revocations paras. 3, 6 (July 13, 2001); U.S. Dep’t of State, DOS Cable on Petitions Returned to INS by Post para. 2 (Apr. 1, 1995); USCIS Operations Instructions § 204.5(d)(2), available at https://books.google.com.kh/books?id=i_YDOwmJ-CwC&pg=RA4-PP12.

[1] 9 FAM 504.2-2(B).

[1] 22 C.F.R. § 42.43(a); 9 FAM 302.9-4(B)(8)(a), 504.2-2(B), -8(A)(a)-(b); Powell, supra note 6, paras. 6-7; Powell, supra note 40; U.S. Dep’t of State, supra note 40; USCIS Operations Instructions, supra note 40.

If DOS does not know or have any reason to believe that the beneficiary is ineligible for the applicable family-immigrant classification/status, it is well-settled—including in DOS sources—that DOS only has the ministerial role of issuing visas to overseas beneficiaries. 6 U.S.C. § 236(b)(1); 8 U.S.C. §§ 1101(a)(16), 1154(b), 1201(a)(1)(A); 22 C.F.R. § 42.41; 9 FAM 504.2-8(C)(1)(A); Powell, supra note 6, para. 7; Powell, supra note 40, para. 6; U.S. Dep’t of State, supra note 40, para. 3. This is of course assuming that DOS has determined, as one of its primary duties, that none of the grounds of inadmissibility under INA § 212(a) apply to the beneficiary. But this is a general duty not specific to the immigration process since this also applies to nonimmigrant-visa applicants. See 8 U.S.C. §§ 1201(g), 1361. And even then, as discussed, DOS cannot make definitive 6C findings of inadmissibility that refute the familial relationship underlying an approved I-130 petition.

[1] 9 FAM 504.2-8(A)(2)(5), (B)(2)(b).

[1] 22 C.F.R. § 42.81(a); 9 FAM 504.9-2, .11-2(A)(a); 9 FAM 40.6 N1(c)(2) (2011), available at https://web.archive.org/web/20151014...ion/86932.pdf; cf. 9 FAM 403.10-2(A)(a).

[1] See 22 C.F.R. § 42.81(a).

[1] 9 FAM 40.6 N1(c)(2), N3.4(a) (2011), available at https://web.archive.org/web/20151014...ion/86932.pdf; Powell, supra note 6; Phnom Penh Liaison 2016, supra note 6; cf. 9 FAM 40.6 N1(b), N3.4(c).

[1] See 9 FAM 302.9-4(B)(6) (2017), available at https://web.archive.org/web/20180326...AM030209.html; 9 FAM 40.6 N3.4(a)-(c) (2011), available at https://web.archive.org/web/20151014091506/http://www.state.gov/documents/organization/86932.pdf.

[1] 9 FAM 40.6 N1(b), (c)(2) (2011), available at https://web.archive.org/web/20151014091506/http://www.state.gov/documents/organization/86932.pdf.

[1] See 22 C.F.R. § 42.81(a).

[1] See Marc Ellis, P6C – Department of State’s War on Love, Logic and Law, ILW.com (July 13, 2010), https://www.ilw.com/articles/2010,0713-Ellis.shtm.


About The Author

Nathan J. Chan (njchan82@hotmail.com) is an adjunct lecturer in the English Language Based Bachelor of Law program at Royal University of Law and Economics in Phnom Penh, Cambodia. He has also worked on U.S. immigration cases mostly in S.E. Asia. He is a former member of the American Immigration Lawyers Association (AILA), AILA's Bangkok District Chapter (BDC), and BDC's Government Liaison Committee. He holds a J.D. from Western Michigan University and an LL.M. from Georgetown University. He was admitted to the District of Columbia Bar in 2016.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.