Visa Denials - Regulation Expands Authority to Revoke Visas

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The Department of State (DOS) has issued a regulation that broadens the authority of consular officers to revoke a visa at any time subsequent to issuance of the visa, including when the individual is already in the U.S. Additionally, the regulation allows consular officers and designated officials within DOS to revoke a visa provisionally while considering a final visa revocation.

This rule is effective April 27, 2011. DOS did not issue the regulation through notice and comment rulemaking on the basis that it involves a foreign affairs function of the United States and, therefore, is exempt from those procedures.

Pursuant to section 221(i) of the Immigration and Nationality Act (INA), DOS may determine that a visa should be revoked when information reveals that the applicant was originally, or has since become, ineligible or may be ineligible to possess a U.S. visa. In testimony before Congress in 2004, DOS stated that it had revoked 1,250 visas since September 11, 2001, based on information suggesting possible terrorist activities or links. Congress and the Government Accountability Office (GAO) have put pressure on DOS and the Department of Homeland Security (DHS) to improve their policies regarding visa revocations.

If DOS revokes an individual’s visa, the information will be uploaded into the Consular Lookout and Support System (CLASS) database and the foreign national may not use the visa for travel to the U.S. Though DOS will seek to notify the traveler, the revocation is effective irrespective of whether the foreign traveler knows about the revocation.

Separately, the INA allows the government to remove (i.e. deport) an individual whose nonimmigrant visa has been revoked under section 221(i). There is no judicial review of the decision to revoke the visa, but there is judicial review in the context of a removal proceeding if the visa revocation is the sole basis for removal.

Expect more denials at the port of entry to the US by individuals not aware that their visa has been revoked. I understand the need for more security but this may not be the way to go.




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