New Rules Make Visas Easier To Revoke

Tuesday, May 31, 2011 - 01:00

Late last month, the State Department issued a regulation that gives consular officers broader authority to revoke a visa in their discretion at any time, and allows them to do so more quickly and easily. The rule means that a foreign national's ability to travel to the United States using an existing visa could be suspended or terminated without notice if a State Department official has any question about the individual's ability to possess the visa. Though the rule was undoubtedly promulgated in large part for important and compelling reasons of national security, it could have the secondary effect of adding a new hurdle in the already complicated process of bringing skilled foreign workers to the United States.

For the last several years, as critics of business immigration have more loudly called for curbs on the hiring of foreign workers, employers have seen all of the immigration-related agencies - including the State Department and the various immigration bureaus of the Department of Homeland Security - place new burdens on foreign nationals seeking new work visas and, even more troublingly, non-citizens who have already been approved to work in a nonimmigrant visa classification and are seeking renewal of their status. These burdens have increasingly taken the form of government agencies second-guessing the decisions of their sister agencies.

In the last year or more, U.S. companies and their foreign national employees have seen that an approval from one immigration-related agency will not ensure deference by another - or even agency deference to its own previous decisions. For example, a foreign national professional deemed eligible by U.S. Citizenship and Immigration Services (USCIS) for H-1B classification may find a State Department consular officer doubting her qualifications for the visa, and even returning her case to USCIS for potential revocation. A foreign consultant granted an L-1 intracompany transferee visa by a U.S. consulate may arrive at a port of entry only to be turned away because an official of Customs and Border Protection concludes that the consulting project on which the foreign national will work is inappropriate under the law. And an H-1B professional seeking to extend his stay in the United States may find that USCIS is now newly questioning whether his job is a specialty occupation as required by the law - even though the job passed muster when his employer originally sought and secured USCIS approval.

The new State Department rule only broadens the government's authority to second-guess the decisions of its own agencies. Though consular officers have long been authorized to revoke a visa when they determine that a foreign national is not or has ceased to be eligible for the temporary immigration classification for which the visa was issued, the new rule broadens that authority substantially. Consular officers also have new power to "provisionally" revoke a visa if an officer believes that more information is needed to determine a foreign national's eligibility, though the visa could be reinstated if the foreign national is later found to be entitled to it. In a departure from previous rules, foreign nationals are no longer able to request the consulate to reconsider a decision to revoke a visa. This means that a consular officer who doubts a foreign national's eligibility for a visa - even after that eligibility has been determined and approved by a sister government agency - can revoke it without notice, leaving a foreign national and his U.S. employer in the lurch. No appeal. No judicial review.

It wasn't always this way. In the past, unless there was evidence of fraud or security concerns, the decisions of one immigration agency were routinely respected by its sister agencies. Unfortunately, though, interagency deference has become a casualty of the current debate on skilled migration. Public criticism of employment-based immigration programs, often coming from Capitol Hill, results in pressure on the immigration-related agencies to tighten the reins. The affected agencies take more restrictive - and sometimes inconsistent - positions on the law, with results that are unpredictable for U.S. companies and their foreign employees. This state of affairs is unlikely to improve until Congress finds consensus on immigration reform and passes clear new rules. And although President Obama has recently reiterated his support for an overhaul of our present system - including much-needed reforms to promote skilled migration - real change is unlikely in the near term.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.