Visa Revocation Basics

February 03, 2017

 

A consular officer is authorized to revoke a nonimmigrant visa at any time, in his or her discretion. A revoked visa is no longer valid for entry or reentry to the United States. This authority is sourced in statute, regulation, and policy.

The Immigration and Nationality Act at INA 212(i), 8 USC 2101(i) provides:

(i) Revocation of visas or documents

After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 1323(b) of this title for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien's embarkation. There shall be no means of judicial review (including review pursuant to section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 1227(a)(1)(B) of this title.

For nonimmigrant visa revocation, Department of State implementing regulations at 22 CFR 41.122(a) state:

(a) Grounds for revocation by consular officers. A consular officer, the Secretary, or a Department official to whom the Secretary has delegated this authority is authorized to revoke a nonimmigrant visa at any time, in his or her discretion.

Similar grounds for revoking an immigrant visa are established by 22 CFR 42.82.

The Department of State's Foreign Affairs Manual also gives consular officers guidance on visa revocation policy and practice, at 9 FAM 403.11.

Provisional visa revocations

Department of State regulations also gives consular officers or the Secretary of State the authority to provisionally revoke a nonimmigrant visa, "while considering information related to whether a visa holder is eligible for the visa." A provisional revocation has the same effect as a regular revocation.

22 CFR 41.122(b) provides:

(b) Provisional revocation. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority may provisionally revoke a nonimmigrant visa while considering information related to whether a visa holder is eligible for the visa. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i).

Similar grounds for provisionally revoking an immigrant visa are established by 22 CFR 42.82.

The Foreign Affairs Manual at 9 FAM 403.11-5(B) also speaks of prudential revocations, which appear to be based on the "provisional revocation" language of the regulation, but allow DOS to prudentially revoke a visa on the basis of a possible ground of inadmissibility. The prudential revocation authority in the FAM is often used to revoke visas after an alcohol-related arrest or conviction (see 9 FAM 403.11-5(B)(c) - - Prudential visa revocation for DUI arrests or convictions).

Notification of visa revocations

Both the individual whose visa has been revoked as well as airlines might be notified by DOS that a visa has been revoked.

DOS regulations at 22 CFR 41.122(c) provide that DOS should notify the alien whose visa is revoked or provisionally revoked, "if practicable."

(c) Unless otherwise instructed by the Department, a consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department's Consular Lookout and Support System (CLASS), the visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued.

If the visa is available to the consular officer, the officer is also instructed to physically cancel the visa by writing or stamping the word "REVOKED" plainly across the face of the visa. The revocation of the visa in the CLASS system controls, however, regardless of whether the visa is actually physically canceled. 22 CFR 41.122(d)  

The Foreign Affairs Manual at 9 FAM 403.11-4(A)(2) provides consular offices with a "Sample Letter of Notification of Revocation to Airline" that is useful to review.

Impact of visa revocation while someone is in the United States

Remember that a visa and immigration status are two separate things. For example, under 22 CFR 41.112(a), "The period of [visa] validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States." But what happens to the immigration status of someone whose visa was revoked while they are in the United States?

Here comes the tricky part. We will provide some material here that nonimmigrants should discuss with an immigration lawyer if they are concerned. INA 237(a)(1)(B), 8 USC 1227(a)(1)(B), provides:

"Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i), is deportable."

Does that mean that someone whose visa is revoked while they are in the United States is always removable because of the visa revocation alone? The answer is not always clear. Let's take the example of the purported provisional visa revocation discussed in NAFSA's "Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order. Several factors support the contention that the provisional visa revocation in that memo does not, in itself, would not render the nonimmigrant removable:

First, there can be a difference between when a visa is revoked and when the revocation becomes effective for a specific individual. The sample "certificate of revocation" at 9 FAM 403.11-4(A)(2), for example, closes with the statement:

"This revocation shall become effective immediately on the date on which this certificate is signed unless the alien is present in the United States at that time, in which case it will become effective immediately upon the alien’s departure from the United States."

This approach also seems to be supported by one of the CBP FAQs on Executive Order 13769, that states,

"F1/J1/M1 visas are currently temporarily suspended due to the executive order. Individuals who were in the U.S. at the time of the signing of the executive order are not affected by the order. However, individuals who were out of the country at the time of the signing, or who travel out of the country and attempt to return will not be allowed to return at this time..."

Finally, NAFSA contacted DOS regarding this particular provisional revocation, who stated (verbally) that the provisional revocation does not apply to those who are still in the United States, that their visas are not revoked unless they depart the United States.

Nonimmigrants in the United States who are concerned about this can be counseled to discuss their situation with an immigration lawyer.

In any case, individuals whose visas have been revoked under Executive Order 13769 while they are in the United States, should always make sure to maintain all the terms and conditions of their valid nonimmigrant status during their stay. See NAFSA's "Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order," for a brief discussion on the interplay of visa reinstatements and a Section 3(g) waiver of the the Executive Order entry ban.

Reinstatement of revoked visas

Just as the Department of State has the authority to revoke a visa, it also has the authority to reinstate a visa that it has revoked. The Foreign Affairs Manual gives the following guidance to consular officers on visa reinstatement following revocation.

9 FAM 403.11-6(B) - Reinstatement Following Revocation

If a visa has been revoked and you subsequently determine that the reason for revocation has been overcome and the alien is no longer ineligible, and that the visa has not been physically cancelled, then the visa should be reinstated in accordance with the appropriate procedure as indicated below, and, in all applicable cases, the procedures listed below should be taken promptly. Posts should submit CLOK removal requests for any revocation-related entries (or contact the Department for entries with DPT refusal sites), and contact the CA Service Desk for removal of the red REVOKED banner from any applicable NIV records.

(1) If Visa Has Been Revoked But No Further Action Taken: If a Form DS-4047, Certificate of Revocation of Visa by Consular Officer, has been prepared in accordance with 9 FAM 403.11-3(A) above, but a copy has not been sent to the Department, if the visa has not been physically canceled, and if notices of revocation have not been sent, a brief summary of the pertinent facts is to be entered on the Form DS-4047, indicating that the revocation was withdrawn. If post had already notified the Department or other posts of the revocation, post should notify the Department (and any relevant posts) of the reinstatement by telegram as follows:

"CVIS; ADVISORY OPINIONS, VISAS, BASIS FOR REVOCATION, NIV, JOHN DOE, OVERCOME, REINSTATED THIS DATE."

(2) If Visa Has Been Revoked and Notices of Revocation Sent:

(a) If the visa has not been physically canceled, but notices of revocation have been sent and the alien has departed, or if the alien's departure cannot be determined, the Department is to be promptly notified by telegram as follows:

"CVIS: ADVISORY OPINIONS, VISAS, BASIS FOR REVOCATION, NIV, JOHN DOE, OVERCOME, REINSTATED THIS DATE."

(b) Any other post involved in the revocation action should be made an INFO addressee of this cable. Notices of reinstatement should be sent by the most expeditious secure means to all parties notified of the revocation.

(3) If Visa Has Been Revoked and Physically Canceled: If a visa has been revoked, notices of revocation sent, the telegraphic report described in 9 FAM 403.11-4(A)(3) above has been made, and the revoked visa physically canceled, the alien may apply for a new visa; however, they may not travel on the physically cancelled visa.

See NAFSA's "Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order," for a brief discussion on the interplay of visa reinstatements and a Section 3(g) waiver of the the Executive Order entry ban.

Seeking legal counsel

Visa revocations, reinstatements, and waivers are complicated and case-specific. Individuals should get advice from an experienced immigration lawyer if they need legal advice about their visa status and their eligibility for admission to the United States.