Rescission of Adjustment Under INA §246
INA §246 allows the government to rescind lawful permanent resident status when a person who obtained permanent residence through adjustment of status was not actually eligible for that adjustment. Formal rescission proceedings generally must be commenced within five years after adjustment. USCIS initiates the process by personally serving a Notice of Intent to Rescind, and the resident has 30 days to submit a sworn answer or request a hearing before an immigration judge. The government bears the burden of proving adjustment ineligibility by clear, unequivocal and convincing evidence.
What is rescission of adjustment of status?
The central question is whether the person was legally eligible when permanent residence was granted, not whether the person later committed an unrelated removable offense.
Who can be subject to INA §246 rescission?
INA §246 applies to a person whose status was adjusted to lawful permanent residence under:
- INA §245;
- INA §249 registry;
- Other statutes providing adjustment to permanent residence; and
- Special adjustment provisions subject to §246.
INA §246 is specifically a rescission mechanism for permanent residence obtained through adjustment. A person who entered the United States with an immigrant visa generally presents a different legal framework.
The five-year rescission period
INA §246(a) applies when ineligibility appears within five years after the person was adjusted to lawful permanent residence.
Important timing questions include:
- Actual date USCIS or EOIR granted adjustment;
- Whether the category uses a rollback date for other purposes;
- Date USCIS initiated rescission proceedings;
- Date the Notice of Intent to Rescind was served; and
- Whether controlling circuit precedent affects the limitation analysis.
For categories with a retroactive permanent-residence date, the five-year rescission period generally runs from the actual grant of adjustment rather than the statutory rollback date.
The Notice of Intent to Rescind
8 C.F.R. §246.1 provides for commencement of formal rescission proceedings through personal service of a notice identifying the allegations on which USCIS intends to rescind status.
The notice must inform the resident that the person can:
- Submit an answer in writing under oath;
- Explain why rescission should not occur;
- Submit relevant evidence;
- Request a hearing before an immigration judge; and
- Be represented by qualified counsel at no expense to the government.
The answer or hearing request must be made within 30 days from service under the regulation.
Do not ignore a rescission notice
Under 8 C.F.R. §246.2, if the resident:
- Admits the allegations;
- Fails to file an answer within 30 days; or
- Fails to request a hearing within that period,
the responsible USCIS official shall rescind the previously granted adjustment, and no appeal lies from that administrative rescission decision under the regulation.
A timely denial or hearing request moves the matter into a formal immigration judge proceeding where evidence and witnesses can be presented.
Hearing before an immigration judge
Under 8 C.F.R. §§246.3 through 246.6, the immigration judge can:
- Receive evidence;
- Examine witnesses;
- Permit cross-examination;
- Determine disputed facts;
- Determine whether adjustment should be rescinded; and
- Enter an order terminating the rescission case or rescinding permanent residence.
The resident has the right to examine and object to government evidence and present evidence in defense of the adjustment.
The government's burden of proof
Rescission precedent places the burden on the government to prove that the resident was not eligible for the adjustment that was granted.
The standard is:
The government bears a materially higher burden than the ordinary preponderance standard the applicant initially carried when applying for adjustment.
Authorities include Waziri v. INS, Matter of Pereira, 19 I&N Dec. 169 (BIA 1984), and other longstanding rescission precedent.
Common rescission allegations
Rescission can involve allegations that the resident was ineligible because of:
- Marriage fraud;
- Fraud or willful misrepresentation;
- False identity;
- False civil documents;
- Criminal inadmissibility existing at adjustment;
- Prior removal order;
- Failure to satisfy INA §245(a);
- Incorrect INA §245(i) eligibility;
- Incorrect INA §245(k) eligibility;
- Underlying immigrant petition invalidity;
- Visa unavailability;
- Failure to satisfy a special adjustment statute; or
- Other facts demonstrating the person was not actually eligible when adjustment was granted.
Marriage-fraud rescission
If USCIS alleges that permanent residence was obtained through a sham marriage, the response should examine:
- Intent at the time of marriage;
- Courtship history;
- Joint residence;
- Financial commingling;
- Children;
- Insurance;
- Tax records;
- Travel;
- Communications;
- Witness testimony;
- Home-visit evidence;
- Statements by former spouses or third parties; and
- Consistency of the government's evidence.
The government must establish that the resident was ineligible at adjustment. A marriage that later fails is not automatically a marriage entered for immigration purposes.
Misrepresentation rescission
Where USCIS relies on alleged INA §212(a)(6)(C)(i) inadmissibility existing at adjustment, analyze:
- What statement or concealment occurred;
- Whether the resident made it;
- Whether it was false;
- Whether it was willful;
- Whether the fact was material;
- Whether the person sought an immigration benefit; and
- Whether a waiver was available or had been granted.
A false statement does not automatically establish every element of the statutory inadmissibility ground.
Rescission can affect derivative residents
If the principal adjustment was legally invalid, derivative adjustment based on the principal can also be affected.
Questions include:
- Whether the derivative's status depended entirely on the principal;
- Whether derivative adjustment was separately valid;
- Whether the government served separate notices;
- Whether each person has independent permanent-residence eligibility; and
- Whether another petition or adjustment basis exists.
What happens if rescission is ordered?
INA §246(a) provides that after rescission the person becomes subject to the immigration laws to the same extent as if the erroneous adjustment had not been made.
Potential consequences include:
- Loss of LPR status;
- Surrender of Form I-551;
- Removal proceedings;
- Loss of derivative status;
- Loss of eligibility that depended on LPR status;
- Employment and travel consequences; and
- Effect on later naturalization.
8 C.F.R. §246.9 governs surrender of the Permanent Resident Card after final rescission.
Appeal from the immigration judge
Under 8 C.F.R. §246.7, either side can appeal the immigration judge's rescission decision to the Board of Immigration Appeals.
The regulation provides a 30-day appeal period after:
- Mailing of a written decision; or
- Stating an oral decision.
Section 246.7 states that the reasons for appeal must be specifically identified in Form EOIR-26 and warns that failure to do so may support summary dismissal.
USCIS does not always need to use formal rescission first
Congress amended INA §246 to state that the government is not required to rescind LPR status before beginning removal proceedings under INA §240.
The statute further provides that an immigration judge's removal order can be sufficient to rescind the person's status.
A resident should not assume that expiration of the formal rescission procedure necessarily prevents DHS from pursuing removal based on adjustment-related ineligibility.
The five-year rule and removal proceedings
There is an important geographic distinction.
Outside the Third Circuit, federal appellate authority generally permits DHS to use removal proceedings based on original adjustment ineligibility even after the five-year rescission period, because INA §246 expressly states that prior rescission is not required.
But the Third Circuit has held differently.
USCIS's current NTA policy recognizes that in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, Third Circuit precedent applies the five-year INA §246 limitation to removal proceedings based on the person's original ineligibility for adjustment.
Other independent grounds of removability can still exist after five years.
Naturalization consequences
INA §246(b) addresses a person who naturalized on the basis of an LPR record created through an adjustment for which the person was not actually eligible and which is later rescinded.
The statute can create denaturalization consequences under INA §340 where the statutory requirements are met.
Adjustment eligibility can therefore become relevant years later when USCIS examines whether lawful permanent residence was lawfully obtained for naturalization purposes.
Rescission versus naturalization denial
USCIS can encounter an old adjustment defect during Form N-400 adjudication.
The government response can depend on:
- How long ago adjustment occurred;
- Whether INA §246 formal rescission remains timely;
- Whether removal proceedings are legally available;
- Federal circuit;
- Whether the applicant was lawfully admitted for permanent residence;
- Nature of the alleged original defect; and
- Whether naturalization can be denied without first completing rescission.
Example: rescission notice served four years after adjustment
USCIS concludes four years after adjustment that the resident was inadmissible when Form I-485 was approved and personally serves a Notice of Intent to Rescind. The resident has 30 days to answer under oath or request an immigration judge hearing. If contested, the government must prove the claimed ineligibility under the governing rescission burden.
Example: alleged adjustment defect discovered after six years
USCIS discovers an alleged original adjustment defect more than five years after LPR status was granted. Formal §246 rescission presents a limitations problem. Whether DHS can instead charge removability based on the original defect depends in part on circuit law. Current USCIS policy specifically recognizes the Third Circuit's different rule under Garcia.
Rescission defense checklist
- Identify actual adjustment approval date.
- Calculate five-year period.
- Review personal service of Notice of Intent to Rescind.
- Calendar 30-day answer and hearing deadline.
- Deny inaccurate allegations specifically.
- Request immigration judge hearing where appropriate.
- Obtain complete original I-485 file.
- Obtain underlying petition file.
- Review admissibility as of adjustment date.
- Review marriage evidence where relevant.
- Review criminal history as of adjustment date.
- Review §245(a), §245(i) or §245(k) eligibility.
- Identify waivers available at the time of adjustment.
- Challenge government evidence under the correct burden.
- Review derivative consequences.
- Review circuit law concerning post-five-year removal.
- Preserve BIA appeal rights.
Common rescission mistakes
Ignoring the 30-Day Notice
Failure to answer or request a hearing can result in administrative rescission without an appeal under §246.2.
Using the Original Applicant Burden
The resident assumes rescission is merely a second I-485 adjudication rather than a proceeding where the government bears the higher rescission burden.
Assuming Five Years Ends Every Risk
The resident overlooks DHS's statutory ability to use removal proceedings and the circuit-specific treatment of the five-year limitation.
Focusing on Present Eligibility
The defense discusses current family or employment circumstances but does not address whether the original adjustment was legally valid.
Ignoring Derivatives
The effect of a principal's alleged adjustment defect on spouse or child LPR status is not analyzed.
Missing the BIA Appeal
An adverse immigration judge rescission decision is allowed to become final without a timely EOIR-26 appeal.
Primary authorities
Related INA245.com guides
Frequently asked questions
How long does USCIS have to rescind adjustment?
INA §246 generally provides a five-year period for formal rescission based on ineligibility at the time adjustment was granted.
How long do I have to respond to a Notice of Intent to Rescind?
8 C.F.R. §246.1 provides 30 days from service to submit a sworn answer or request an immigration judge hearing.
Who has the burden of proof?
The government bears the burden of proving adjustment ineligibility by clear, unequivocal and convincing evidence under longstanding rescission precedent.
Can I appeal a rescission decision?
A contested rescission decision by an immigration judge can be appealed to the BIA within the regulatory 30-day period.
Can DHS put me in removal proceedings instead of rescinding first?
Yes. INA §246 expressly states that prior rescission is not required before initiation of INA §240 removal proceedings.
Am I safe after five years?
Formal rescission is generally subject to the five-year limit, but removal consequences after five years depend on the charged ground and circuit law. The Third Circuit follows a more protective rule for removal based on original adjustment ineligibility.
A rescission case is not a new green card application. The government is attempting to undo an already granted permanent residence and must follow the special procedure and burden Congress created for that purpose.
The Messersmith Law Firm, P.A. represents lawful permanent residents in matters involving INA §246 rescission, marriage fraud, misrepresentation, adjustment ineligibility, removal proceedings, naturalization consequences and complex post-adjustment litigation.
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