Chapter 3 - Rescission Process

In order to rescind a person’s adjustment to lawful permanent resident (LPR) status, USCIS must serve the person through personal service^[1] a Notice of Intent to Rescind (NOIR) within 5 years of the date of his or her adjustment.^[2] Once the NOIR has been served, rescission action may proceed even beyond the 5-year time limit (in other words, the serving of the NOIR “stops the clock”). In the case of a person whose adjustment contained a “rollback” provision (for example, a Cuban who adjusted under the Cuban Adjustment Act), the 5-year time period is calculated from the actual date on which the adjustment was granted, not on the date to which the adjustment was rolled back.^[3]

A. Jurisdiction

In general, any USCIS field office has jurisdiction over the initiation of rescission of adjustment of status proceedings if it appears that the noncitizen was not, in fact, eligible for the adjustment at the time of approval for LPR status.^[4] However, if a noncitizen adjusted status after a USCIS grant of suspension of deportation or special rule cancellation of removal pursuant to Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA),^[5] the asylum office that issued the grant initiates rescission proceedings and coordinates with the asylum office that has jurisdiction over the place of residence to determine next steps in the rescission process.^[6] As a matter of policy, USCIS does not initiate rescission proceedings if adjustment was granted by an immigration judge.

B. Rescission of Adjustment of a Conditional Permanent Resident

With regards to conditional permanent residents (CPRs), the period of time that he or she is in CPR status counts as part of the 5-year limitation under INA 246. However, USCIS generally does not use the rescission authority of INA 246 for those who are CPRs.

1. Certain Spouses and Sons and Daughters Defined in INA 216

If USCIS determines that a person’s CPR status should be terminated for the reasons set forth in INA 216, then USCIS generally does not use the rescission authority of INA 246.

In general, USCIS terminates a person’s CPR status if USCIS determines, before the second anniversary of obtaining CPR status, that the qualifying marriage was improper because:

• The qualifying marriage was entered into for the purpose of procuring a person’s admission as an immigrant;^[7]
• The qualifying marriage has been judicially annulled or terminated, other than through the death of a spouse;^[8] or
• A fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for filing of a petition under INA 204(a) or INA 214(d) or (p) with respect to the noncitizen.^[9]

In general, USCIS also terminates CPR status if:

• The CPR does not file a Petition to Remove Conditions on Residence (Form I-751) which requests the removal of the conditions on his or her permanent resident status.^[10]
• The CPR and petitioning spouse fail to appear for their interview in connection with a jointly filed Form I-751, or the CPR fails to appear for his or her interview in connection with Form I-751 filed based on hardship waiver;^[11] or
• USCIS makes an adverse determination and denies Form I-751.^[12]

If USCIS discovers the CPR was not eligible for adjustment of status, but the person’s CPR status should not be terminated pursuant to INA 216, then USCIS may use the rescission authority of INA 246.

2. Certain Entrepreneurs, Spouses, and Children Defined in INA 216A [Reserved]

[Reserved]

C. Deportability Based on Events Arising After Adjustment

If a person becomes removable as a result of an event that occurred after adjustment of status to lawful permanent residence, he or she is not subject to rescission as a result of the event. However, the officer may refer the case for possible initiation of removal proceedings if the person is deemed removable.^[13]

D. Rescission of Adjustment After Naturalization

In general, naturalization is revoked before the rescission of adjustment of status.^[14]

Footnotes

[^ 1] See 8 CFR 103.8(a)(2).

[^ 2] See 8 CFR 246.1.

[^ 3] See Matter of Carrillo-Gutierrez (PDF), 16 I&N Dec. 429 (BIA 1977).

[^ 4] See 8 CFR 246.1, which does not limit the jurisdiction of USCIS field offices to initiate rescission proceedings for persons residing outside of a USCIS field office’s district.

[^ 5] See Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2196 (November 19, 1997).

[^ 6] The applicant’s residence refers to the applicant’s principal, actual dwelling place in fact, without regard to intent. See INA 101(a)(33).

[^ 7] See INA 216(b)(1)(A)(i). See 8 CFR 216.3.

[^ 8] See INA 216(b)(1)(A)(ii).

[^ 9] See INA 216(b)(1)(B). See 8 CFR 216.3.

[^ 10] See INA 216(c)(2)(A)(i) and INA 216(c)(4). See 8 CFR 216.4(a)(6).

[^ 11] See INA 216(c)(2)(A)(ii). See 8 CFR 216.4(b)(3) and 8 CFR 216.5(d).

[^ 12] See INA 216(c)(3)(C). See 8 CFR 216.4(d)(2) and 8 CFR 216.5(f).

[^ 13] See Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, PM-602-0050.1, issued June 28, 2018.

[^ 14] INA 246(b) provides that a person whose adjustment of status has been rescinded is subject to revocation of naturalization under INA 340. For additional information, see Volume 12, Citizenship and Naturalization, Part L, Revocation of Naturalization [12 USCIS-PM L].