Consular Officers does not have the authority to readjudicate INS-approved petitions
Posted by Jeff Xie on November 10, 2002 at 22:24:23
Q: Many consulates (particularly those in Eastern Europe, South America, and parts of Asia) seem to routinely re-adjudicate nonimmigrant petitions previously approved by the INS. It has always been our understanding that Consulates may investigate approved petitions for misrepresentation or fraudulent documentation, but that they may not re-adjudicate cases. Over the past year, one consulate refused to issue an O-1 visa because “there were no newspaper articles about the applicant in the petition.” Another post refused an H-1B because the applicant did not speak English “well enough.” On other occasions, posts simply say, “You are not qualified for this visa.” Please remind posts of the clear limitation on authority to question the favorable adjudication of a petition by the INS. A: This issue is addressed in 9 FAM 41.52 N2.2, Approved Petition Is Prima Facie Evidence of Entitlement to H Classification: “Consular officers do not have the authority to question the approval of H petitions without specific evidence, unavailable to INS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications which conform to the INS regulations in effect at the time the H petition was filed.” There is similar guidance relating to “O” visas in 9 FAM 41.55 Note 8.4. “Other than instances involving obvious errors, consular officers do not have the authority to question the approval of O petitions without specific evidence, unavailable to INS at the time of petition approval, that the beneficiary may not be entitled to status.” In regard to language proficiency, the applicant must demonstrate capability to take up the duties of the position. Therefore, while language proficiency is not a prerequisite to eligibility, if the position is such that English language proficiency is reasonably needed to take up the duties of the position, and the applicant has no demonstrated proficiency, there could be a basis for returning the petition to INS for review. DOS Answers to AILA Questions (10/02/2002)
AILA InfoNet at Doc. No. 02100340 (Oct. 3, 2002) .
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