Returning Petitions/Applications Under Section 221(g) of the INA
The following guide is specific to returned petitions/applications under Section 221(g) of the Immigration and Nationality Act issued by the Department of State at the conclusion of a beneficiary interview.
First a Little Basic 101 on the 221(g):
The document issued by the Department of State under Section 221(g) of the Immigration and Nationality Act (INA) is for the most part used for requesting additional information from the beneficiary such as missing documents, additional evidence, or advising them of not being able to issue their visa due to pending name/security checks i.e. Administrative Processing or Administrative Review. However, Section 221(g) is also used by the Department of State when returning petitions/applications to the USCIS for further review ultimately recommending revocation.
Why are Petitions/Applications Returned to the USCIS by an Embassy/Consulate Under Section 221(g)?
Petitions/applications are returned for a variety of case specific reasons. Returning a petition/application to the USCIS means that the embassy/consulate refuses to issue a visa to the beneficiary, but they do not have specific evidence to actually deny a visa application. So the next best thing to do is return the petition/application to the USCIS office where the petition was originally filed requesting further review and ultimately recommending revocation.
What Happens When a Petition/Application is Returned to the USCIS by an Embassy/Consulate?
- 221(g) is issued to beneficiary at conclusion of the interview stating the application and/or petition is being returned to the United States.
- Petition is returned to the United States by the interviewing consulate for “further review” in what is called a diplomatic pouch.
- Returned petition is received by the NVC. It is reviewed and entered into the fraud database by fraud management.
- Returned petition is sent to the local USCIS service center where the petition was originally filed and approved.
- Local service center receives returned petition.
- Local service center who processed the original petition sends a notice of receipt to the petitioner.
- Local service center reviews the returned petition and consular officer notes on the case.
- Local service center then sends either a NOID (Notice of Intent to Deny) or NOIR (Notice of Intent to Revoke) to the petitioner also asking for more proof of the relationship, many cases have specific consular objections to rebut.
- Petitioner is given 30-60 days from date of NOIR/NOID (depending on the service center) to respond with additional evidence of the relationship or other specific evidence. The timeframe to respond will be provided in the letter.
- Local service center receives evidence…if in the timeframe given (30-60 days) the case is reviewed and either original approval is reaffirmed or the petition is officially denied.
- If the petition is denied the local service center sends the petitioner an ‘official’ denial letter. This can be officially appealed if the denial letter states such.
- If the petition is reaffirmed the local service center sends the petitioner an official notice of reaffirmation.
- Local service center sends the reaffirmed petition AND its evidence provided in the rebuttal directly to the consulate along with a recommendation to issue a visa.
- Consulate notifies the beneficiary of a new interview date.
- Beneficiary has interview for the reaffirmed petition and the visa is either issued, or the case in placed in Administrative Processing which after cleared a visa is issued, or worst case scenario it is denied via Section 221(g) and returned again to the USCIS with a recommendation for revocation.
What can you do immediately when faced with this issue:
- First and foremost, contact a good immigration attorney.
- Immediately have the beneficiary send a scanned copy of the 221(g) issued.
- Contact the consulate directly (immediately) and attempt to have the petition reviewed by the senior consular before it is returned.
- If you are unable to get through to the consulate on the phone, contact them via email, and if you’re mail has a “read verification” use it.
- Contact your congressman/senator, get them involved immediately. You will need to sign a release form giving them permission to make an inquiry on your behalf.
- Provide your congressman/senator with as much information as possible about your case, the interview, and the result.
- If your congressman/senator is top notch, they will not just send an email or letter to the consulate, they will call on the phone and try to get the petition reviewed again before it is sent back.
- If they are not successful, they can request the diplomatic pouch number the petition is being returned in. This number will allow you to track the petition until it is received by the local service center.
To track a returned petition/application with a pouch number, you can contact the Diplomatic Pouch Service in Washington:
- Diplomatic Pouch Service: 202-663-1588
If you do not know who your congressman/senator is, use the following links to find out who represents your area:
If the petition is returned, you are in for a wait. The diplomatic pouch the petition is returned in is sent from embassy to embassy picking up other returned petitions along the way. It could take up to 2 or 3 months for it to be received by fraud management at the NVC…then the NVC has the petition for about 1 month before sending it to the local service center where it was originally filed. One thing to also know is that returned petitions do not take priority…they are reviewed in the order they are received, that is after new petitions have been processed.
What You Can Do in the Meantime While You Wait:
- Continue contacting the consulate to get an actual reason for the return…not the blanket “validity of relationship” response.
- Stay in contact with your congressman/senator, they can assist you in getting the actual reason for denial.
- Immediately file a Freedom Of Information Act request for the Department of State asking specifically for the consular notes on your returned petition: DOS FOIA
- Immediately file for a Freedom of Information Act request for the USCIS asking for the same specific consular notes on your returned petition: USCIS FOIA
- Continue to document your relationship, emails, letters, phone bills, visits to their country, etc.
- Be ready for the opportunity to rebut the consular findings.
- Contact a good immigration attorney as suggested above…preferably one who has experience in returned and denied petitions.
After a period of 6 months or longer has passed and you do not hear anything from the local service center regarding the receipt of your return, or the results of the review, you can contact the CIS Ombudsman. While the Ombudsman cannot make the USCIS reaffirm your returned petition, they can assist when processing times are outside of guidelines
Now, there are some differences between returned fiancé petitions and marriage petitions. The K1 is especially at risk due to the expiration of the original approval, many returned K1s are not given the opportunity to rebut, they receive a notice telling them their K1 has expired and may file again at any time…this is why the FOIA is so important. You need to know the exact reason the petition was returned, just filing again is a huge risk if you do not know why the petition was returned in the first place.
While the K3 does have an expiration date also, they are treated more seriously. I have not known anyone who has had a returned K3 not being given the opportunity to rebut. Obviously the CR1 does not expire. Still, it is very important to file the FOIA, not every service center will tell you exactly what the consular office findings or objections to issuing the visa are. Some people are only asked to provide more evidence of their relationship.